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Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly Dec 2018

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Faculty Scholarship

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal ...


Free Trade, Immigrant Workers, And Employment Discrimination, Angela D. Morrison Dec 2018

Free Trade, Immigrant Workers, And Employment Discrimination, Angela D. Morrison

Faculty Scholarship

This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs.

This article shifts the focus. Instead, it argues ...


Property-As-Society, Timothy M. Mulvaney Oct 2018

Property-As-Society, Timothy M. Mulvaney

Faculty Scholarship

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception ...


The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne Barnes Oct 2018

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne Barnes

Faculty Scholarship

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that ...


Preventing Sexual Harassment And Misconduct In Higher Education: How Lawyers Should Assist Universities In Fortifying Ethical Infrastructure, Susan Saab Fortney Oct 2018

Preventing Sexual Harassment And Misconduct In Higher Education: How Lawyers Should Assist Universities In Fortifying Ethical Infrastructure, Susan Saab Fortney

Faculty Scholarship

The shocking reports of sexual misconduct involving Larry Nassar, the former physician at Michigan State University, captured attention worldwide. More than 300 women sued alleging that the university ignored or dismissed complaints. In Congressional testimony the former president of Michigan State apologized and noted that an independent review of the university's policies revealed that they were among the most robust that the consultants had seen. This raises the question as to how sexual misconduct could have gone unaddressed for many years. The answer to this question may be found in a 2018 Consensus Report of the National Academies of ...


Getting It Right: Title Ix's Role In Adjudicating Sexual Assault Claims, Meg Penrose Sep 2018

Getting It Right: Title Ix's Role In Adjudicating Sexual Assault Claims, Meg Penrose

Faculty Scholarship

Article Extract:

I want to start with a very important point: sexual assault is a crime. We have a serious issue in the United States with sexual assault and sexual harassment. We are seeing this play out right now, and I think the “Me Too” campaign has brought important attention to this issue. An issue that impacts not only our college residence halls, but, as we have seen, the halls of Congress. Serious people are not debating whether sexual assault and sexual harassment pose a societal problem. Rather, serious people are debating how to adequately address these issues without compromising ...


Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol Aug 2018

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Faculty Scholarship

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication ...


High Crimes And Misdemeanors: A View From The #Metoo Era, Elizabeth Rapaport Jul 2018

High Crimes And Misdemeanors: A View From The #Metoo Era, Elizabeth Rapaport

Faculty Scholarship

A look at President Bill Clinton, sexual misconduct, feminism and politics within the lens of the #MeToo movement. This article builds off the authors 2001 article, "Sex and Politics at the Close of the Twentieth Century: A Feminist Looks Back at the Clinton Impeachment and the Thomas Confirmation Hearings," in Aftermath: The Clinton Impeachment and the Presidency in the Age of Political Spectacle.


Medico-Legal Collaboration Regarding The Sex Offender: Othering And Resistance, Mary Lay Schuster, Brian N. Larson, Amy D. Propen May 2018

Medico-Legal Collaboration Regarding The Sex Offender: Othering And Resistance, Mary Lay Schuster, Brian N. Larson, Amy D. Propen

Faculty Scholarship

We examined medico-legal collaboration regarding dangerous sex offenders where state legislators have adopted statutes that determine the criteria for commitment to and discharge from civil commitment programs. The application of these statutes relies on medical diagnoses of pathologies such as paraphilia, anti-social personality disorder, and pedophilia along with prognoses for cure or recidivism. In our study, we examined court opinions from commitment hearings and observed a trial in federal court on the constitutionality of these commitments. We found that one result of this medico-legal collaboration is the marginalization or othering of sex offenders by essentializing, dividing, shaming, and impeaching them ...


Federalism And The State Police Power: Why Immigration And Customs Enforcement Must Stay Away From State Courthouses, George Bach Apr 2018

Federalism And The State Police Power: Why Immigration And Customs Enforcement Must Stay Away From State Courthouses, George Bach

Faculty Scholarship

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This presence has had an adverse effect on domestic violence victims who are immigrants, as they fear encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about ...


Exposing Secret Searches: A First Amendment Right Of Access To Electronic Surveillance Orders, Hannah Bloch-Wehba Mar 2018

Exposing Secret Searches: A First Amendment Right Of Access To Electronic Surveillance Orders, Hannah Bloch-Wehba

Faculty Scholarship

Although, as a rule, court proceedings and judicial records are presumptively open to the public, electronic surveillance documents are exceptions. Like ordinary search warrants, surveillance applications are considered ex parte. But court orders frequently remain sealed indefinitely, even when there is no basis for continued secrecy. Indeed, secrecy — in the form of gag orders, local judicial rules, and even clerical filing and docketing practices — is built into the laws that regulate electronic surveillance.

This Article argues that this widespread secrecy violates the First Amendment right of access to court proceedings and documents. The history of search and seizure shows that ...


Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman Mar 2018

Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman

Faculty Scholarship

Extract:

I want to give you a roadmap for our program. We will not be delivering individual papers but, rather, hope to have a discussion. We are planning to spend thirty minutes on introductions for the purpose of allowing you to identify the source of each panelist's perspectives. We will then use an hour, more or less, for a discussion among the panel. That will leave fifteen minutes for audience questions and participation. Because we will be publishing an edited transcript, we ask that you hold your questions until the end.

Access to justice is a broad topic, and ...


Beyond Intermediary Liability: The Future Of Information Platforms - Workshop Report, Tiffany Li Feb 2018

Beyond Intermediary Liability: The Future Of Information Platforms - Workshop Report, Tiffany Li

Faculty Scholarship

On February 13, 2018, WIII hosted the workshop, “Beyond Intermediary Liability: The Future of Information Platforms.” Leading experts from industry, civil society, and academia convened at Yale Law School for a series of non-public, guided discussions. The roundtable of experts considered pressing questions related to intermediary liability and the rights, roles, and responsibilities of information platforms in society. Based on conversations from the workshop, WIII published a free, publicly available report detailing the most critical issues necessary for understanding the role of information platforms, such as Facebook and Google, in law and society today. The report highlights insights and questions ...


Prediction, Persuasion, And The Jurisprudence Of Behaviorism, Frank A. Pasquale, Glyn Cashwell Jan 2018

Prediction, Persuasion, And The Jurisprudence Of Behaviorism, Frank A. Pasquale, Glyn Cashwell

Faculty Scholarship

No abstract provided.


A Rule Of Persons, Not Machines: The Limits Of Legal Automation, Frank A. Pasquale Jan 2018

A Rule Of Persons, Not Machines: The Limits Of Legal Automation, Frank A. Pasquale

Faculty Scholarship

No abstract provided.


Prosecution Of Child Pornography—The One-Eyed Judge By Michael A. Ponsor: A Book Review, Beth Cohen, Pat Newcombe Jan 2018

Prosecution Of Child Pornography—The One-Eyed Judge By Michael A. Ponsor: A Book Review, Beth Cohen, Pat Newcombe

Faculty Scholarship

The safeguarding and protection of children in society is crucial. Yet, children remain a vulnerable population; they are abused, neglected, trafficked, and exploited in numerous ways. In his new book, The One-Eyed Judge, Michael Ponsor, Senior United States District Court Judge for the District of Massachusetts, Western Division, who has presided over numerous child pornography cases, explores the complexities and legal implications of child pornography and exploitation.


Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo Jan 2018

Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo

Faculty Scholarship

Recent initiatives for investment reform demonstrated by the 2016 United Nations Conference on Trade and Development and 2018 World Investment Reports have raised key issues for sustainable development in the context of investment in natural resources and energy. Where there has been increasing convergence between trade and environmental norms as trade regimes confront domestic regulatory measures for environmental protection and climate change mitigation, similarly investment regimes also have had to address such domestic measures but with little progress towards normative convergence. At the same time, there’s an increasing skepticism for the traditional models of globalization of the 1990s and ...


A Title Ix Conundrum: Are Campus Visitors Protected From Sexual Assault?, Hannah Brenner Jan 2018

A Title Ix Conundrum: Are Campus Visitors Protected From Sexual Assault?, Hannah Brenner

Faculty Scholarship

Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has ...


The Second Amendment As Positive Law, Joseph Blocher, Darrell A.H. Miller Jan 2018

The Second Amendment As Positive Law, Joseph Blocher, Darrell A.H. Miller

Faculty Scholarship

No abstract provided.


If We Pay Football Players, Why Not Kidney Donors, Philip J. Cook, Kimberly D. Krawiec Jan 2018

If We Pay Football Players, Why Not Kidney Donors, Philip J. Cook, Kimberly D. Krawiec

Faculty Scholarship

Ethicists who oppose compensating kidney donors claim they do so because kidney donation is risky for the donor’s health, donors may not appreciate the risks and may be cognitively biased in other ways, and donors may come from disadvantaged groups and thus could be exploited. However, few ethical qualms are raised about professional football players, who face much greater health risks than kidney donors, have much less counseling and screening concerning that risk, and who often come from racial and economic groups deemed disadvantaged. It thus seems that either ethicists—and the law—should ban both professional football and ...


Conscious Identity Performance, Leslie P. Culver Jan 2018

Conscious Identity Performance, Leslie P. Culver

Faculty Scholarship

No abstract provided.


Formative Projects, Formative Influences: Of Martha Albertson Fineman And Feminist, Liberal, And Vulnerable Subjects, Linda C. Mcclain Jan 2018

Formative Projects, Formative Influences: Of Martha Albertson Fineman And Feminist, Liberal, And Vulnerable Subjects, Linda C. Mcclain

Faculty Scholarship

This essay, contributed to a symposium on the work of Professor Martha Albertson Fineman, argues that Fineman is a truly generative and transformative scholar, spurring people to think in new ways about key terms like “dependency,” “autonomy,” and “vulnerability” and about basic institutions such as the family and the state. It also recounts Fineman’s role in creating spaces for the generation of scholarship by others. The essay traces critical shifts in Fineman’s scholarly concerns, such as from a theory of dependency to vulnerability theory and from a gender lens to a skepticism about a focus on identities and ...


Women Of Color And Health: Issues And Solutions, June Cross, Nia Weeks, Kristen Underhill, Chloe Bootstaylor Jan 2018

Women Of Color And Health: Issues And Solutions, June Cross, Nia Weeks, Kristen Underhill, Chloe Bootstaylor

Faculty Scholarship

Chloe Bootstaylor: Welcome to our second panel. This panel focuses on women of color in health, issues, and solutions. The session is inspired by Professor June Cross of the Columbia School of Journalism and her recent film, Wilhemina’s War, which follows the story of Wilhemina Dixon and depicts the obstacles that Americans with HIV/AIDS face in accessing not only adequate healthcare but also financial, infrastructural, and social support in their communities.

This panel will consist of Professor Underhill and Nia Weeks. June Cross will join us a little later on. We will start with a clip from her ...


Fiduciary Principles In Family Law, Elizabeth S. Scott, Ben Chen Jan 2018

Fiduciary Principles In Family Law, Elizabeth S. Scott, Ben Chen

Faculty Scholarship

Family members bear primary responsibility for the care of dependent and vulnerable individuals in our society, and therefore family relationships are infused with fiduciary obligation. Most importantly, the legal relationship between parents and their minor children is best understood as one that is regulated by fiduciary principles. Husbands and wives relate to one another as equals under contemporary law, but this relationship as well is subject to duties of care and loyalty when either spouse is in a condition of dependency. Finally, if an adult is severely intellectually disabled or becomes incapacitated and in need of a guardian, a family ...


How Investors Can (And Can't) Create Social Value, Paul Brest, Ronald J. Gilson, Mark A. Wolfson Jan 2018

How Investors Can (And Can't) Create Social Value, Paul Brest, Ronald J. Gilson, Mark A. Wolfson

Faculty Scholarship

Most investors throughout the world have a single goal: to earn the highest risk- adjusted financial returns. They would not accept a lower financial return from an investment that also produced social benefits.

More recently, an increasing number of socially-motivated investors have goals beyond maximizing returns. They also seek to align their investments with their social values (value alignment), and some also seek to cause the companies in which they invest to create more social value as a result of their investment (social value creation). We show in this essay that while it is relatively easy to achieve value alignment ...


Young Adulthood As A Transitional Legal Category: Science, Social Change And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg Jan 2018

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, developmental brain research has had an important influence on juvenile crime regulation. More recently, advocates and some policy makers have argued that the developmental research should shape the law’s response to young adult offenders. Developmental scientists have found that biological and psychological development continues into the early 20, and that 18 to 21 year old adults are more like younger adolescents than older adults in their impulsivity under some conditions. Further, like teenagers, young adults engage in risky behavior, such as drinking, smoking, unsafe sex, using drugs, and offending, to a greater extent than older ...


Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Christopher Robertson, Bernard Chao, Ian Farrell, Catherine Durso Jan 2018

Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Christopher Robertson, Bernard Chao, Ian Farrell, Catherine Durso

Faculty Scholarship

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct ...