Law Commons^™

Federal (De)Funding Of Local Police, Stephen Rushin, Roger Mikalski

Faculty Publications & Other Works

Across the political spectrum, politicians, commentators, and activists frequently invoke federal funding as a lever to induce changes in local police behavior. But can federal funding function as an effective policy lever at the local level? Is federal funding or the threat of defunding a sufficiently strong tool to effectuate deeply contentious policy goals over local opposition?

This Essay conducts an empirical examination of federal funding for local and state police agencies in the United States. It finds that the federal government remains a relatively minor contributor to local police budgets. We find that federal funding only reaches a minority …

Oral Argument In The Time Of Covid: The Chief Plays Calvinball, Matthew Sag, Tonja Jacobi, Timothy R. Johnson, Eve M. Ringsmuth

Faculty Publications & Other Works

In this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in-person by the current Court and examine whether the justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female justices disproportionately more than the male justices and gave the male justices more …

Unilateral Burdens And Third-Party Harms: Abortion Conscience Laws As Policy Outliers, Nadia N. Sawicki

Faculty Publications & Other Works

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers' rights to refuse-- and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences--are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This …

The New Tipping Point: Disruptive Politics And Habituating Equality, Sarah E. Waldeck, Rachel D. Godsil

Faculty Publications & Other Works

This Essay argues that the events of 2020 opened a window of political opportunity to implement policies aimed at dismantling structural injustice and systemic racism. Building on the work of philosopher Charles Mills and political scientist Clarissa Rile Hayward, we argue that the Black Lives Matter Movement constituted the “disruptive politics” necessary to shift dispositions of many in the United States toward racial equity by interrupting the white “epistemologies of ignorance.” Moreover, because policies that correct structural injustice are beneficial for people across race, even those whose hearts and minds remained closed may embrace legislative policies that function to dismantle …

Home Equity: Rethinking Race And Federal Housing Policy, Sarah E. Waldeck, Rachel D. Godsil

Faculty Publications & Other Works

Neighborhoods shape every element of our lives. Where we live determines economic opportunities; our exposure to police and pollution; and the availability of positive amenities for a healthy life. Home inequity—both financial and racial—is not accidental. Federal government programs have armed white people with agency to construct “white” spaces while stigmatizing “Black” spaces. The urgency of addressing structural injustice in housing has been laid bare by police-involved shootings and the disparate death rates linked to COVID-19.

Using political philosopher Tommy Shelbie’s theory of corrective justice, this Article explores the historical and present-day harms that need to be rectified and then …

Masculinity In Policing: The Need To Recruit More Women In American Police Departments Fall 2020 Symposium: Addressing The Crisis In Policing Today: Race, Masculinity, And Police Use Of Force In America, Stephen Rushin

Faculty Publications & Other Works

This Article, written as part of The George Washington Law Review Symposium on “Addressing the Crisis in Policing Today,” examines how American police departments can improve their recruitment and retention of women. Women currently make up a mere 13% of all police officers in the United States. This number has remained frustratingly low and stagnant for years.

This Article begins by considering the potentially harmful consequences of the underrepresentation of women in American policing. Some commentators have recently argued that the hiring of more women may, by itself, help transform policing. To evaluate this hypothesis, the first part of this …

Addressing Hate: Georgia, The Irs, And The Ku Klux Klan, Samuel D. Brunson

Faculty Publications & Other Works

In 1944, the Ku Klux Klan officially suspended its operations. Two years later, it had entirely ended. In part this was the inevitable result of a decade of declining influence and membership. In part, though, it was the result of actions by the federal government and the state of Georgia. In 1916 the Ku Klux Klan incorporated as a Georgia fraternal organization, following a model of the Masons and other fraternal organizations. It also claimed to be a tax-exempt fraternal beneficiary society under the new federal income tax. These legal statuses provided the Klan with legal rights and benefits and …

Federal (De)Funding Of Local Police, Roger Michalski, Stephen Rushin

Faculty Publications & Other Works

Across the political spectrum, politicians, commentators, and activists frequently invoke federal funding as a lever to induce changes in local police behavior. But can federal funding function as an effective policy lever at the local level? Is federal funding or the threat of defunding a sufficiently strong tool to effectuate deeply contentious policy goals over local opposition?

This Essay conducts an empirical examination of federal funding for local and state police agencies in the United States. It finds that the federal government remains a relatively minor contributor to local police budgets. We find that federal funding only reaches a minority …

Did Voir Dire And Discovery Restrictions Justify The Grant Of A New Sentencing Hearing To The Man Convicted Of The Boston Marathon Bombing?, Alan Raphael, Lindsay Hill

Faculty Publications & Other Works

No abstract provided.

The New Tipping Point: Disruptive Politics And Habituating Equality, Sarah E. Waldeck, Rachel D. Godsil

Faculty Publications & Other Works

This Essay argues that the events of 2020 opened a window of political opportunity to implement policies aimed at dismantling structural injustice and systemic racism. Building on the work of philosopher Charles Mills and political scientist Clarissa Rile Hayward, we argue that the Black Lives Matter Movement constituted the “disruptive politics” necessary to shift dispositions of many in the United States toward racial equity by interrupting the white “epistemologies of ignorance.” Moreover, because policies that correct structural injustice are beneficial for people across race, even those whose hearts and minds remained closed may embrace legislative policies that function to dismantle …

Home Equity: Rethinking Race And Federal Housing Policy, Rachel D. Godsil, Sarah E. Waldeck

Faculty Publications & Other Works

Neighborhoods shape every element of our lives. Where we live determines economic opportunities; our exposure to police and pollution; and the availability of positive amenities for a healthy life. Home inequity—both financial and racial—is not accidental. Federal government programs have armed white people with agency to construct “white” spaces while stigmatizing “Black” spaces. The urgency of addressing structural injustice in housing has been laid bare by police-involved shootings and the disparate death rates linked to COVID-19.

Using political philosopher Tommy Shelbie’s theory of corrective justice, this Article explores the historical and present-day harms that need to be rectified and then …

The Lost History Of Delegation At The Founding, Christine Chabot

Faculty Publications & Other Works

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch's dissent in Gundy v. United States--an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …

The Political Face Of Antitrust, Spencer Weber Waller, Jacob Morse

Faculty Publications & Other Works

The last twenty years have brought antitrust back to the fore as a political issue of greater salience. Several booms and busts in the economy have highlighted the issue of corporate power in the economy and the political system. The growing influence and aggressiveness of the European Union and other jurisdictions' competition laws have highlighted the relative retreat in the United States. Political movements in the United States have brought issues of corporate power and its abuse back into the public limelight and with them a greater political salience for antitrust in the election cycle of 2020.

Maintaining Client Privacy In An Increasingly Public World, Anne-Marie E. Rhodes, Mel M. Justak

Faculty Publications & Other Works

Individuals have long been interested in protecting their private family and financial matters from broad public disclosure. Motives vary, of course, but can range from safety concerns to saving certain family members from public embarrassment that could jeopardize future busi­ ness and social opportunities. 1 While motives may have changed little over time, the urgency to protect privacy is more pronounced in today's world.2 For example, 100 years ago the primary vehicle for wide dissemi­ nation of news - including a family's or individual's private matters - was newspapers. While disclosure through this medium could certainly be embarrassing, the disclosure …

State Peer Review Laws As A Tool To Incentivize Reporting To Medical Boards, Nadia N. Sawicki

Faculty Publications & Other Works

State medical boards have been stymied in their ability to take disciplinary action against physicians who engage in serious misconduct, in part because hospitals and other health care organizations rarely report such misconduct. This Article offers a proposal for incentivizing hospital reporting of physician misconduct, inspired by an existing but flawed model in the federal Health Care Quality Improvement Act. This Article proposes that state legislatures link state medical practice act reporting requirements with state laws establishing an evidentiary privilege for peer review activities.

Legal Opacity: Artificial Intelligence’S Sticky Wicket, Charlotte A. Tschider

Faculty Publications & Other Works

Proponents of artificial intelligence (“AI”) transparency have carefully illustrated the many ways in which transparency may be beneficial to prevent safety and unfairness issues, to promote innovation, and to effectively provide recovery or support due process in lawsuits. However, impediments to transparency goals, described as opacity, or the “black-box” nature of AI, present significant issues for promoting these goals.

An undertheorized perspective on opacity is legal opacity, where competitive, and often discretionary legal choices, coupled with regulatory barriers create opacity. Although legal opacity does not specifically affect AI only, the combination of technical opacity in AI systems with legal opacity …

Ai's Legitimate Interest: Towards A Public Benefit Privacy Model, Charlotte A. Tschider

Faculty Publications & Other Works

Health data uses are on the rise. Increasingly more often, data are used for a variety of operational, diagnostic, and technical uses, as in the Internet of Health Things. Never has quality data been more necessary: large data stores now power the most advanced artificial intelligence applications, applications that may enable early diagnosis of chronic diseases and enable personalized medical treatment. These data, both personally identifiable and de-identified, have the potential to dramatically improve the quality, effectiveness, and safety of artificial intelligence.

Existing privacy laws do not 1) effectively protect the privacy interests of individuals and 2) provide the flexibility …

Judicialization Of Election Disputes In Africa’S International Courts, James T. Gathii

Faculty Publications & Other Works

When elections are judicialized in Africa, national courts overwhelmingly legitimize incumbent electoral victories. When opposition candidates lose in high stakes presidential and gubernatorial elections, they seldom concede defeat with- out legal challenges. Claims of electoral irregularities, fraud, incompetence of electoral bodies, violence, and an unequal playing field, among other factors, transform these cases into highly contested mega-political disputes when they are judicialized.

Rather than creating new political equilibria, judicialization in national courts often results in the hegemonic preservation of incumbents. Though opposition politicians and political parties know this, they nonetheless resort to international courts in Africa, in part, because they …

Happiness And Economic Justice, John Bronsteen

Faculty Publications & Other Works

This paper addresses the question, “What would economic justice look like within the framework of Gross National Happiness (GNH)?” The paper begins by discussing the underlying philosophical justification behind GNH and how it differs from the justification underlying Gross National Product (GNP). It explains why, as a historical and theoretical matter, so many economists (especially in the West) believe in wealth-based measures and why happiness-based measures are better choices on both theoretical and practical grounds. Then it goes on to discuss methodologies for collecting happiness data and converting that data into prescriptions for law and public policy. In particular, the …

A Reflection On Integration, Neil G. Williams

Faculty Publications & Other Works

I wrote this essay in December 2019, shortly after attending the 2019 LatCrit Conference in Atlanta. I grew up in Atlanta during the heyday of the Civil Rights Movement in the 1960s into the early 1970s. Attending the 2019 LatCrit Conference brought back memories of my experiences as part of the earliest waves of black students sent to integrate Atlanta's historically all-white high schools. In the intervening years, too many elementary and high schools in America remain segregated (or, in many instances, only nominally integrated) as broad swaths of America have abandoned the commitment to ensuring that our young people …

Beyond The "Black Box", Charlotte A. Tschider

Faculty Publications & Other Works

As algorithms have become more complex, privacy and ethics scholars have urged artificial intelligence (AI) transparency for purposes of ensuring safety and preventing discrimination. International statutes are increasingly mandating that algorithmic decision-making be explained to affected individuals when such decisions impact an individual's legal rights, and U.S. scholars continue to call for transparency in automated decision-making.

Unfortunately, modern Al technology does not function like traditional, human-designed algorithms. Due to the unavailability of alternative intellectual property (IP) protections and their often dynamically inscrutable status, algorithms created by Al are often protected under trade-secrecy status, which prohibits sharing the details of a …

The Unitary Executive Theory Is Plainly Wrong And Anti-American: "Presidents Are Not Kings", Allen E. Shoenberger

Faculty Publications & Other Works

President Trump clearly believes he was a king. He was not. Both the Constitution itself and Constitutional history make that abundantly clear. The kingship claim is made under the guise of the Unitary Executive Theory, a theory that lacks any historical grounding and a theory that is fundamentally at odds with why the American Revolution was fought. It is a very dangerous theory, as the Presidency under Trump illustrates. Its culmination: a physical assault on the Capital.

This article will first examine the Constitutional history of the power of the president, and then turn to the rise of the doctrine …

Pandemic Politics, Public Health, And The Fda, Jordan Paradise, Becky Bavlsik

Faculty Publications & Other Works

No abstract provided.

Forgotten On The Frontlines: The Plight Of Direct Care Workers During Covid-19, John D. Blum, Shawn R. Mathis

Faculty Publications & Other Works

No abstract provided.

The Uncertain Fate Of Asymmetrical Dispute Resolution Clauses In Arbitration Around The Globe: To Be Or Not To Be, Raluca Papadima

Scholarly Works

This article examines the validity and enforceability of asymmetrical dispute resolution clauses combining arbitration and litigation. Such clauses are currently favored by businesses in their search for a method of dispute resolution that provides a more favorable position for one of the parties to an agreement and ensures better enforcement against the assets of the counterparty.

From Common Law To Affirmative Consent: Reforming Minnesota’S Criminal Sexual Conduct Laws, Nate Summers

Mitchell Hamline Law Review

No abstract provided.

Moving Ahead: Finding Opportunities For Transactional Training In Remote Legal Education, Jen Randolph Reise

Mitchell Hamline Law Review

No abstract provided.

Jurisprudence And Recommendations For Tribal Court Authority Due To Imposition Of U.S. Limitations, Angelique Eaglewoman

Mitchell Hamline Law Review

No abstract provided.

Covid-19, Abortion, And Public Health In The Culture Wars, Laura D. Hermer

Mitchell Hamline Law Review

No abstract provided.

Fundamental Funds: Tax Credits And The Increasing Tension Between The Free Exercise Clause And Establishment Clause—Espinoza V. Montana Department Of Revenue, 140 S. Ct. 2246 (2020), Elizabeth Jacobson

Mitchell Hamline Law Review

No abstract provided.