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Full-Text Articles in Law

Immigration Law's Arbitrariness Problem, Shalini Ray Oct 2021

Immigration Law's Arbitrariness Problem, Shalini Ray

Articles

Despite deportation’s devastating effects, the Immigration and Nationality Act (INA) specifies deportation as the penalty for nearly every immigration law violation. Critics have regularly decried the INA’s lack of proportionality, contending that the penalty often does not fit the offense. The immigration bureaucracy’s implementation of the INA, however, involves a spectrum of penalties short of deportation. Using tools such as administrative closure, orders of supervision, and deferred action, agency bureaucrats decide who is deported and who stays, and on what terms, on a purely ad hoc basis. In this “shadow system,” immigrants, their advocates, and the broader ...


Contaminated Relationships In The Opioid Crisis, Benjamin Mcmichael, Elissa Philip Gentry Mar 2021

Contaminated Relationships In The Opioid Crisis, Benjamin Mcmichael, Elissa Philip Gentry

Articles

Unlike past public health crises, the opioid crisis arose from within the healthcare system itself. Entities within that system, particularly opioid manufacturers, may bear some liability in sparking and perpetuating the current crisis. Unsurprisingly, the allegations underlying the thousands of claims filed in connection with the opioid crisis differ substantially. However, almost all of those claims rely, to some degree, on the strength of the relationship between opioid manufacturers and the healthcare providers who prescribed their products.

This Article argues that the underlying relationship is the heart of the crisis and that this problematic relationship is by no means a ...


Beyond Bail, Jenny E. Carroll Jan 2021

Beyond Bail, Jenny E. Carroll

Articles

From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of monetary bail, reform movements have altered the landscape of pretrial detention. Yet, reform movements have paid little attention to the emerging reality of a post-monetary-bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on nonmonetary conditions of release. These nonmonetary conditions can be problematic for many of the same reasons that monetary bail is problematic and can inject additional bias into the pretrial system.

In theory, nonmonetary conditions offer increased opportunities ...


Unintended Legislative Inertia, Mirit Eyal-Cohen Jan 2021

Unintended Legislative Inertia, Mirit Eyal-Cohen

Articles

Institutional and political forces create strong inertial pressures that make updating legislation a difficult task. As a result, laws often stagnate, leading to the continued existence of obsolete rules and policies that serve long-forgotten purposes. Recognizing this inertial power, legislatures over the last few decades have increasingly relied on a perceived solution -- temporary legislation. In theory, this measure avoids inertia by requiring legislators to choose to extend a law deliberately.

This Article argues that temporary legislation is a double-edged sword. While some temporary laws ultimately expire, many perpetuate through cycles of extension and reauthorization. Temporary legislation often creates its own ...


Redliking: When Redlining Goes Online, Allyson Gold Jan 2021

Redliking: When Redlining Goes Online, Allyson Gold

Articles

Airbnb's structure, design, and algorithm create a website architecture that allows user discrimination to prevent minority hosts from realizing the same economic benefits from short-term rental platforms as White hosts, a phenomenon this Article refers to as "redliking." For hosts with an unused home, a spare room, or an extra couch, Airbnb provides an opportunity to create new income streams and increase wealth. Airbnb encourages prospective guests to view host photographs, names, and personal information when considering potential accommodations, thereby inviting bias, both implicit and overt, to permeate transactions. This bias has financial consequences. Empirical research on host earning ...


The Case Against Collective Liability, J. Shahar Dillbary Jan 2021

The Case Against Collective Liability, J. Shahar Dillbary

Articles

Collective liability-defined as the imposition of liability on a group that may include innocent actors-is commonplace. From ancient to modem times, legislators, regulators, and courts have imposed such liability when they believe that the culprit is a member of the group. Examples of collective liability abound: from surgical teams held jointly liable for a misplaced sponge to entire families evicted from their homes for the drug-related activity of a single person under the "One Strike Rule." Courts recognize, of course, that collective liability punishes the innocent, but they view it as a necessary evil to smoke out and punish an ...


Squaring A Circle: Advice And Consent, Faithful Execution, And The Vacancies Reform Act, Ronald J. Krotoszynski Jr., Atticus Deprospo Jan 2021

Squaring A Circle: Advice And Consent, Faithful Execution, And The Vacancies Reform Act, Ronald J. Krotoszynski Jr., Atticus Deprospo

Articles

Successive presidents have interpreted the Federal Vacancies Reform Act of 1998 to authorize the appointment of principal officers on a temporary basis. Despite serving in a mere "acting" capacity and without the Senate's approval, these acting principal officers nevertheless wield the full powers of the office. The best argument in favor of this constitutionally dubious practice is that an acting principal officer is not really a "principal officer" under the U.S. Constitution because she only serves for a limited period. Although not facially specious, this claim elides the most important legal fact: an acting principal officer may exercise ...


Groundhog Law, Richard Delgado Jan 2021

Groundhog Law, Richard Delgado

Articles

An unexpected question from a conference participant sends Rodrigo in search of the professor's counsel. A young stranger from another discipline had asked him why law seems never to advance and posited that the reason may be that, lone among disciplines, law is uninterested in advancing human knowledge. The questioner even raised the possibility that law may not belong on a university campus along with departments such as Physics, English, and History, and might well consider relocating to community colleges where it would find a disciplinary home along with courses on welding, automobile mechanics, and high-speed cooking.

Rodrigo, who ...


Appellate Courts And Civil Juries, Adam Steinman Jan 2021

Appellate Courts And Civil Juries, Adam Steinman

Articles

In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation - which is now before the Supreme Court - exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a ...


Sex, Crime, And Serostatus, Courtney K. Cross Jan 2021

Sex, Crime, And Serostatus, Courtney K. Cross

Articles

The HIV crisis in the United States is far from over. The confluence of widespread opioid usage, high rates of HIV infection, and rapidly shrinking rural medical infrastructure has created a public health powder keg across the American South. Yet few states have responded to this grim reality by expanding social and medical services. Instead, criminalizing the behavior of people with HIV remains an overused and counterproductive tool for addressing this crisis - especially in the South, where HIV-specific criminal laws are enforced with the most frequency.

People living with HIV are subject to arrest, prosecution, and lengthy prison sentences if ...


The Emerging Lessons Of Trump V. Hawaii, Shalini Ray Jan 2021

The Emerging Lessons Of Trump V. Hawaii, Shalini Ray

Articles

In the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on President Trump's animus toward immigrants. This Article assesses Hawaii's impact on these challenges to immigration policy, and it offers two observations. First, Hawaii has amplified federal courts' practice of privileging administrative law claims over constitutional ones. For example, courts ...


Abdication Through Enforcement, Shalini Ray Jan 2021

Abdication Through Enforcement, Shalini Ray

Articles

Presidential abdication in immigration law has long been synonymous with the perceived nonenforcement of certain provisions of the Immigration and Nationality Act. President Obama’s never-implemented policy of deferred action, known as DAPA, serves as the prime example in the literature. But can the President abdicate the duty of faithful execution in immigration law by enforcing the law, i.e., by deporting deportable noncitizens? This Article argues “yes.” Every leading theory of the presidency recognizes the President’s role as supervisor of the bureaucracy, an idea crystallized by several scholars. When the President fails to establish meaningful enforcement priorities, essentially ...


Cannabis Banking: What Marijuana Can Learn From Hemp, Julie A. Hill Jan 2021

Cannabis Banking: What Marijuana Can Learn From Hemp, Julie A. Hill

Articles

Marijuana-related businesses have banking problems. Many banks explain that, because marijuana is illegal under federal law, they will not serve the industry. Even when marijuana-related businesses can open bank accounts, they still have trouble accepting credit cards and getting loans. Some hope to fix marijuana's banking problems with changes to federal law. Proposals range from broad reforms removing marijuana from the list of controlled substances to narrower legislation prohibiting banking regulators from punishing banks that serve the marijuana industry. But would these proposals solve marijuana's banking problems?

In 2018, Congress legalized another variant of the Cannabis plant species ...


The Least Of These: The Case For Nationwide Injunctions In Immigration Cases As A Critical Democratic Institution, Allen Slater, Richard Delgado Jan 2021

The Least Of These: The Case For Nationwide Injunctions In Immigration Cases As A Critical Democratic Institution, Allen Slater, Richard Delgado

Articles

No abstract provided.


State-Created Fetal Harm, Benjamin Mcmichael, Meghan Boone Jan 2021

State-Created Fetal Harm, Benjamin Mcmichael, Meghan Boone

Articles

Half a century of state-level restrictions on abortion access might cause a casual observer to conclude that state governments have a long-standing commitment to protecting fetal life. And yet, over the last several decades, state governments and local law enforcement are increasingly taking steps that actively undermine fetal health. Through the passage of state fetal endangerment laws and the prosecution of pregnant women under stretched interpretations of existing criminal laws, states are actively creating conditions that result in poorer fetal health outcomes-including an increase in fetal and infant death.

This Article seeks to make three important contributions to the scholarly ...


If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll Jan 2021

If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll

Articles

No abstract provided.


Against Congressional Case Snatching, Ronald J. Krotoszynski Jr., Atticus Deprospo Jan 2021

Against Congressional Case Snatching, Ronald J. Krotoszynski Jr., Atticus Deprospo

Articles

Congress has developed a deeply problematic habit of aggrandizing itself by snatching cases from the Article III courts. One form of contemporary case snatching involves directly legislating the outcome of pending litigation by statute. These laws do not involve generic amendments to existing statutes but rather dictate specific rulings by the Article III courts in particular cases. Another form of congressional case snatching involves rendering ongoing judicial proceedings essentially advisory by unilaterally permitting a disgruntled litigant to transfer a pending case from an Article III court to an executive agency for resolution. Both practices involve Congress reallocating the business of ...


Incentivized Torts: An Empirical Analysis, John Shahar Dillbary, Cherie Metcalf, Brock Stoddard Jan 2021

Incentivized Torts: An Empirical Analysis, John Shahar Dillbary, Cherie Metcalf, Brock Stoddard

Articles

Courts and scholars assume that group causation theories deter wrongdoers. This Article empirically tests, and rejects, this assumption, using a series of incentivized laboratory experiments. Contrary to common belief and theory, data from over 200 subjects show that group liability can encourage tortious behavior and incentivize individuals to act with as many tortfeasors as possible. We find that subjects can be just as likely to commit a tort under a liability regime as they would be when facing no tort liability. Group liability can also incentivize a tort by making subjects perceive it as fairer to victims and society. These ...


The Due Process Of Bail, Jenny E. Carroll Jan 2020

The Due Process Of Bail, Jenny E. Carroll

Articles

The Due Process Clause is a central tenet of criminal law's constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Article considers the lay of the bail due process landscape through the lens of the district court's opinion in ODonnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the ODonnell court failed to characterize pretrial ...


Rethinking Standards Of Appellate Review, Adam N. Steinman Jan 2020

Rethinking Standards Of Appellate Review, Adam N. Steinman

Articles

Every appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court's framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial ...


Payday, Yonathan A. Arbel Jan 2020

Payday, Yonathan A. Arbel

Articles

Legislation lags behind technology all too often. While trillions of dollars are exchanged in online transactions-safely, cheaply, and instantaneously-workers still must wait two weeks to a month to receive payments from their employers. In the modern economy, workers are effectively lending money to their employers, as they wait for earned wages to be paid. The same worker who taps a credit card to pay for groceries in semiautomated checkout lines depends on dated payroll systems that only transfer payments on a "payday." Workers, especially those living paycheck-to-paycheck, are hard-pressed to meet their daily needs and turn to expensive, short-term credit ...


Separating Fact From Fiction In Evaluating The Endangered Species Act: Recognizing The Need For Ongoing Conservation Management And Regulation, William L. Andreen Jan 2020

Separating Fact From Fiction In Evaluating The Endangered Species Act: Recognizing The Need For Ongoing Conservation Management And Regulation, William L. Andreen

Articles

No abstract provided.


Safety, Crisis, And Criminal Law, Jenny E. Carroll Jan 2020

Safety, Crisis, And Criminal Law, Jenny E. Carroll

Articles

No abstract provided.


Essentializing Labor Before, During, And After The Coronavirus Pandemic, Deepa Das Acevedo Jan 2020

Essentializing Labor Before, During, And After The Coronavirus Pandemic, Deepa Das Acevedo

Articles

In the era of COVID-19, the term essential labor has become part of our daily lexicon. Between March and May 2020, essential labor was not just the only kind of paid labor occurring across most of the United States; it was also, many argued, the only thing preventing utter economic and humanitarian collapse. As a result of this sudden significance, legal scholars, workers' advocates, and politicians have scrambled to articulate exactly what makes essential labor "essential." Some commentators have also argued that the rise of essential labor as a conceptual category disrupts or should disrupt longstanding patterns in the way ...


Health Justice Strategies To Eradicate Lead Poisoning: An Urgent Call To Safeguard Future Generations, Allyson E. Gold, Emily A. Benfer, Emily Coffey, Mona Hanna-Attisha, Bruce Lanphear, Helen Y. Li, Ruth Ann Norton, David Rosner, Kate Walz Jan 2020

Health Justice Strategies To Eradicate Lead Poisoning: An Urgent Call To Safeguard Future Generations, Allyson E. Gold, Emily A. Benfer, Emily Coffey, Mona Hanna-Attisha, Bruce Lanphear, Helen Y. Li, Ruth Ann Norton, David Rosner, Kate Walz

Articles

Despite over a century of evidence that lead is a neurotoxin that causes irreparable harm, today, lead continues to pervade children's environments and remains a constant threat to health and wellbeing. One in three homes across the United States housing children under the age of six has significant lead-based paint hazards that place occupants at risk of permanent neurological harm and lifelong poor health risks. Federal, state, and local governments must use a range of primary prevention strategies in order to fully eradicate the risks and protect children from lead poisoning. This Article provides a comprehensive examination of best ...


Presidential Laws And The Missing Interpretive Theory, Tara Leigh Grove Jan 2020

Presidential Laws And The Missing Interpretive Theory, Tara Leigh Grove

Articles

There is something missing in interpretive theory. Recent controversies-involving, for example, the first travel ban and funding for sanctuary cities-demonstrate that presidential "laws" (executive orders, proclamations, and other directives) raise important questions of meaning. Yet, while there is a rich literature on statutory interpretation and a growing one on regulatory interpretation, there is no theory about how to discern the meaning of presidential directives. Courts, for their part, have repeatedly assumed that presidential directives should be treated just like statutes. But that does not seem right: theories of interpretation depend on both constitutional law and institutional setting. For statutes, the ...


The First Amendment As A Procrustean Bed?: On How And Why Bright Line First Amendment Tests Can Stifle The Scope And Vibrancy Of Democratic Deliberation, Ronald J. Krotoszynski Jr. Jan 2020

The First Amendment As A Procrustean Bed?: On How And Why Bright Line First Amendment Tests Can Stifle The Scope And Vibrancy Of Democratic Deliberation, Ronald J. Krotoszynski Jr.

Articles

No abstract provided.


Farm-Raised Trout, Richard Delgado, Jean Stefancic Jan 2020

Farm-Raised Trout, Richard Delgado, Jean Stefancic

Articles

No abstract provided.


Paying For Pretrial Detention, Russell M. Gold Jan 2020

Paying For Pretrial Detention, Russell M. Gold

Articles

American criminal law vastly overuses pretrial detention even as it purports to presume defendants innocent. This Article compares financial incentives in pretrial detention to those in civil preliminary injunctions. Both are procedures where one of the parties seeks relief before judgment. And yet, these two procedures employ financial incentives in opposite ways. Civil procedure discourages interim relief by requiring plaintiffi to bear financial risk when they obtain a preliminary injunction. Criminal law does the opposite-encouraging interim relief by requiring defendants to pay to avoid pretrial detention. The reasons that civil procedure relies on financial incentives to discourage requests for interim ...


Occupational Licensing And The Opioid Crisis, Benjamin J. Mcmichael Jan 2020

Occupational Licensing And The Opioid Crisis, Benjamin J. Mcmichael

Articles

The United States' affordable care crisis and chronic physician shortage have required nurse practitioners to assume increasingly important roles in the healthcare system. Nurse practitioners can address critical access-to-care problems, provide safe and effective care, and lower the cost of care. However, restrictive occupational licensing laws - specifically, scope-of-practice laws - have limited their ability to care for patients. Spurred by interest groups opposed to allowing nurse practitioners to practice independently, states require physician supervision of nurse practitioners. Research has discredited many of the traditional reasons for these restrictive laws, but emerging arguments assert that independent practice will deepen the ongoing opioid ...