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Articles 1 - 11 of 11
Full-Text Articles in Law
The Technologies Of Race: Big Data, Privacy And The New Racial Bioethics, Christian Sundquist
The Technologies Of Race: Big Data, Privacy And The New Racial Bioethics, Christian Sundquist
Articles
Advancements in genetic technology have resurrected long discarded conceptualizations of “race” as a biological reality. The rise of modern biological race thinking – as evidenced in health disparity research, personal genomics, DNA criminal forensics, and bio-databanking - not only is scientifically unsound but portends the future normalization of racial inequality. This Article articulates a constitutional theory of shared humanity, rooted in the substantive due process doctrine and Ninth Amendment, to counter the socio-legal acceptance of modern genetic racial differentiation. It argues that state actions that rely on biological racial distinctions undermine the essential personhood of individuals subjected to such taxonomies, …
An Invitation Regarding Law And Legal Education, And Imagining The Future, Michael J. Madison
An Invitation Regarding Law And Legal Education, And Imagining The Future, Michael J. Madison
Articles
This Essay consists of an invitation to participate in conversations about the future of legal education in ways that integrate rather than distinguish several threads of concern and revision that have emerged over the last decade. Conversations about the future of legal education necessarily include conversations about the future of law practice, legal services, and law itself. Some of those start with the somewhat stale questions: What are US law professors doing, what should they be doing, and why? Those questions are still relevant and important, but they are no longer the only relevant questions, and they are not the …
Doctrinal Reasoning As A Disruptive Practice, Jessie Allen
Doctrinal Reasoning As A Disruptive Practice, Jessie Allen
Articles
Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.
Critical Race Ip, Anjali Vats, Deidre A. Keller
Critical Race Ip, Anjali Vats, Deidre A. Keller
Articles
In this Article, written on the heels of Race IP 2017, a conference we co-organized with Amit Basole and Jessica Silbey, we propose and articulate a theoretical framework for an interdisciplinary movement that we call Critical Race Intellectual Property (Critical Race IP). Specifically, we argue that given trends toward maximalist intellectual property policy, it is now more important than ever to study the racial investments and implications of the laws of copyright, trademark, patent, right of publicity, trade secret, and unfair competition in a manner that draws upon Critical Race Theory (CRT). Situating our argument in a historical context, we …
Property Musings At The U.S.-Mexico Border, Gerald S. Dickinson
Property Musings At The U.S.-Mexico Border, Gerald S. Dickinson
Articles
President Donald J. Trump issued an Executive Order calling for “a physical wall on the southern border” of the United States in January, 2017. In his address before Congress, the President stated, “[W]e will soon begin the construction of a great wall along our southern border.” The political response to the Executive Order has been swift. Representative Lamar Smith of Texas views the Executive Order as a testament to the President “honoring his commitment” to immigration enforcement. Senator Ron Johnson of Wisconsin favorably compares the border mandates in Israel and Egypt as successful examples of how to mitigate illegal immigration. …
Bundling Justice: Medicaid's Support For Housing, Mary Crossley
Bundling Justice: Medicaid's Support For Housing, Mary Crossley
Articles
Achieving safe and stable housing presents a profound and ongoing challenge for many people living in poverty. The challenges include housing that is substandard or unaffordable and continuing risks of eviction. For a growing number, these challenges prove too much, and they become homeless. In addition, housing-related challenges that are part of daily life for many poor people can influence their physical and mental health. Increased attention to the health impacts of inadequate, insecure, and unaffordable housing has prompted some – including public health experts, physicians, and sociologists studying housing – to urge that housing issues, and homelessness in particular, …
Board Rooms And Jail Cells- Assessing Ngo Approaches To Private Environmental Governance, Joshua Galperin
Board Rooms And Jail Cells- Assessing Ngo Approaches To Private Environmental Governance, Joshua Galperin
Articles
Staff of the Nature Conservancy often find themselves in corporate board rooms. Staff of Greenpeace often find themselves in jail cells. The Nature Conservancy (TNC) prides itself on its non-confrontational, collaborative deal making, partnering closely with corporations like chemical giant Dow and agricultural lightning rod Monsanto. Both Dow and Monsanto, in fact, are members of TNC’s Business Council along with the likes of BP, Shell, and Cargill. Greenpeace, on the other hand, prides itself on direct action, civil disobedience, and non-violent confrontation. Greenpeace has launched combative operations against Dow, Monsanto, and other TNC collaborators. While business partners praise TNC’s cooperative …
Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson
Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson
Articles
Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …
Essay: Cooperative Federalism And Federal Takings After The Trump Administration's Border Wall Executive Order, Gerald S. Dickinson
Essay: Cooperative Federalism And Federal Takings After The Trump Administration's Border Wall Executive Order, Gerald S. Dickinson
Articles
The Trump Administration’s (arguably) most polemic immigration policy — Executive Order No. 13,767 mandating the construction of an international border wall along the southwest border of the United States — offers a timely and instructive opportunity to revisit the elusive question of the federal eminent domain power and the historical practice of cooperative federalism. From federal efforts to restrict admission and entry of foreign nationals and aliens (the so-called “travel ban”) to conditioning federal grants on sanctuary city compliance with federal immigration enforcement, state and local governments (mostly liberal and Democratic enclaves) today have become combative by resisting a federal …
The Broken Medicare Appeals System: Failed Regulatory Solutions And The Promise Of Federal Litigation, Greer Donley
The Broken Medicare Appeals System: Failed Regulatory Solutions And The Promise Of Federal Litigation, Greer Donley
Articles
The Medicare Appeals System is broken. For years, the System has been unable to accommodate a growing number of appeals. The result is a backlog so large that even if no new appeals were filed, it would take the System a decade or more to empty. Healthcare providers wait many years for their appeals to be heard before an Administrative Law Judge (ALJ), and because the government recoups providers' Medicare payments while they wait, the delays cause them serious financial harm. Even worse, providers are more likely than not to prevail before the ALJ, proving that the payment should never …
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David A. Harris, David Rudovsky
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David A. Harris, David Rudovsky
Articles
The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …