It is an honor to write this brief response to Ruth Colker’s article, The Tyranny of Personhood. Professor Colker is one of the most distinguished constitutional law scholars of her generation. Her work has deepened, broadened, and enriched our understanding of both constitutional law and disability justice. Only a select group of legal academics can boast of a scholarly influence comparable to that of Professor Colker over the last forty years. The breadth of Professor Colker’s scholarship is awe-inspiring. She has authored sixteen books and more than fifty articles. Her books have won national awards and have been published by leading publishers and top law journals. But Professor Colker’s scholarly impact is even more impressive than her extraordinary productivity. Her scholarship has been cited by courts around the country, including twice by the United States Supreme Court. Fellow scholars have cited her books and articles more than 5,000 times.
Determining an offender’s criminal culpability is an evergreen challenge. It demands a careful blending of the offender’s moral responsibility for the crime with the offense’s identifiable harmful impacts on its victims and society. Far from a mere abstract or occasional theoretical exercise, this evaluative undertaking represents a critical iterative stage before charges can be filed, findings of legal guilt rendered, or sentences imposed. Getting these assessments right is non-negotiable for a functioning justice system that relies on the public’s respect and support. This article argues that the prevailing view of criminal culpability, the central driver in the millions of criminal cases annually flowing through our justice system, is unduly narrow. More specifically, criminal conduct involves two distinct forms of injury to the victim. One form, physical or emotional harm to victims, is widely acknowledged. However, the other form, wronging by imposing unequal standing on the victim, has been unjustifiably minimized, with significant negative societal and systemic implications. By conveying that they do not consider others’ rights sufficiently important, offenders engage in a form of moral betrayal of both the victim and society. No longer equal with others in the community, the offender, through their blameworthy conduct, subjugates their victim while concurrently elevating their own status. Our failure to properly account for this type of antisocial self-elevation as a separate and distinct injury prevents us from accurately describing the crime committed. It also limits our ability to account for the offense’s full spectrum of adverse impacts on the victim and society. The proposed victim-centric approach addresses these issues and seeks to advance the justice system’s ability to foster the equality-supporting civic bonds and shared social norms essential for a thriving society.
I originally wrote Confessions of a National Security Lawyer as an April Fools’ prank during my tenure as an attorney in the Intelligence Law Division at the Department of Homeland Security. I assumed—correctly, as it transpired—that my connections on LinkedIn and Twitter (as it was then called) would be drawn in by the article’s provocative title, only to be confronted with a couple of pages of heavily redacted nonsense. Gotcha! If it was commentary, it was intended to be gentle. While I occasionally had questions about why certain information I encountered in the course of my duties was classified or otherwise protected from public disclosure, I generally accepted that there were good reasons to keep many of the details about our nation’s national security apparatus secret. In the intervening years, my views have shifted. I now see the overclassification issues Confessions satirizes as a significant impediment to the democratic accountability of our intelligence agencies. Some examples of how government officials appear to have abused classification in the context of spying performed pursuant to Section 702 of the Foreign Intelligence Surveillance Act help to illustrate this point.
Professor Lubin’s “Selling Surveillance” provides insightful information on the current attempts to promote legal solutions to the pressing international challenge of commercial spyware proliferation that has emerged as a critical challenge to human rights, democratic institutions, and national security. 1 Amid recent revelations of the extensive use of sophisticated surveillance tools like Pegasus, Predator, and Hermit against journalists, human rights defenders, politicians, and diplomats worldwide, Lubin’s article provides an invaluable critique of the current international efforts to establish regulatory frameworks for the commercial spyware industry, which has long operated in a legal grey zone between legitimate law enforcement tools and dangerous cyber weapons . His article is setting the scene for a policy-oriented academic and applied research, whose framework I will try to set forth, while using his insightful observations as an empirical scaffolding to describe in broad terms how we should move forward with spyware export control. The evolving landscape of cyber capabilities demands a fundamental shift in how we approach spyware export controls. Current policies often rely on binary decisions—either permitting or prohibiting exports based on simplified criteria—which fails to address the complex reality of these sophisticated tools, and the hard reality that Lubin acknowledges, that the spyware services and products are considered by most governments as legitimate—and therefore are here to stay. This response paper argues for a more nuanced approach that should integrate two critical and often neglected dimensions: comprehensive technical analysis and spyware-oriented geo-strategic assessment. The technical component would extend beyond basic capability evaluation to encompass the full spectrum of potential applications, vulnerabilities, and collateral impacts of cyber tools. This technical understanding must then be contextualized within a sophisticated political and geo-strategic framework that considers regional power dynamics, governance structures, internal legislation, history of misuse, and potential implications for international relations. My argument proceeds through several interconnected stages of analysis to present a basic framework for the policy formation of spyware export controls. It begins by examining Professor Lubin’s insightful work on cyber export policy, building upon his theoretical and empirical legal foundations while identifying a potential policy impediment, which is the lack of scale to measure spyware export decision-making. The discussion then advances to incorporate critical technical dimensions, demonstrating how detailed technological analysis can broaden the spectrum of policy options available to decisionmakers. The core contribution of this work lies in its development of an integrated analytical framework that can serve as a scale for spyware decision making that synthesizes both technical capabilities and geo-strategic implications of commercial spyware exports. The paper concludes by outlining the broader implications of this dual-analysis approach for future cyber export control policies and identifying promising directions for subsequent research in this rapidly evolving domain.
Public eviction records can plague tenants for years—even when cases are dismissed or resolved in the tenant’s favor. Tenant screening companies capture and report these records, often without context, creating an indelible “Scarlet E” that locks many renters out of future housing opportunities. In response, a growing number of states have adopted eviction sealing laws which limit public access to certain eviction records. This Note argues Ohio should join this trend and adopt a balanced sealing law of its own. Comparing recent sealing legislation in California, Nevada, and Utah, this Note analyzes how each state has balanced the competing interests of tenant protection, landlord interest, and open court records. Drawing on these examples, this Note proposes specific provisions for an Ohio law, including automatic sealing upon case dismissal; regulations upon tenant screening companies; and provisions specifically addressing landlord interests. This Note concludes that such a balanced approach, tailored to Ohio’s legal and political landscape, can provide a fair and feasible path to greater housing stability for Ohio renters.
This Article considers potential implications of repealing Chevron deference on tax law. The Chevron doctrine, which historically allowed courts to defer to federal agencies’ interpretations of ambiguous statutes, has been a cornerstone of administrative law. This Article examines how the recent shift away from Chevron deference, highlighted by the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, may affect various industries, including cannabis, cryptocurrency, renewable energy, and telecommunications, and may potentially lead to significant changes in tax policy and enforcement across these sectors. This Article considers examples of how this legal shift might reshape certain aspects of tax practices, offering insights into the evolving balance of power between the judiciary and federal agencies in the post-Chevron landscape.
On June 7, 2024, a three-judge panel of the Ninth Circuit issued a decision that, while it did not go as far as anti-vaccine activists claimed, clearly drew on anti-vaccine tropes, and suggested a retreat from important public health precedents. This Article explains the decision and the way in which it can undermine public health law. In short, the decision is problematic in two ways. First, it accepts claims that are untrue on their face. By ignoring the evidence and facts provided by public health authorities and experts, the opinion demonstrates further erosion of the high deference to expertise embodied in the classic Jacobson v. Massachusetts. Second, it seeks to limit Jacobson in seemingly innocuous, but dangerous ways. Specifically, it implies a fundamental right to refuse vaccination in the workplace for public employees, at least in relation to COVID-19 vaccines. This commentary will introduce the case, explain the Jacobson standard, and then explain the Ninth Circuit’s decision and its problematic implications for public health law.
A bankrupt debtor may claw back payments made to creditors in the ninety days before the bankruptcy filing—so-called preferential transfers. The power to do so arises from closely drafted and highly technical statutory text, which subjects some transactions to claw back and not others. Scholars have long debated the reasons for the scope and limitations of preference law and have frequently proposed to expand or contract its coverage. One recent proposal would read the statutory text to exclude payments made to a creditor by check or wire transfer from preference liability. This reading interprets the Bankruptcy Code to limit preference liability to recipients of the debtor’s property; in bank and wire transfers, the creditor technically receives the bank’s property in the transaction. But even if this proposal’s basic premises are accepted, the Code should still hold creditors paid by check or wire transfer liable for preferential transfers on a complete reading of the relevant statutory text and its underlying policy justifications.
Law review articles seldom address U.S. Supreme Court certiorari denials. However, when such a denial upholds racism, imperialism, and the subjugation of millions of U.S. citizens, it warrants not only mention but universal condemnation. This is exactly what occurred in the high court’s recent refusal to review Fitisemanu v. United States. The Court had to decide whether persons born in United States territories are entitled to birthright citizenship under the Fourteenth Amendment’s Citizenship Clause, including whether the century-old Insular Cases should be overruled. By refusing to grant certiorari, the Court upheld the status quo, thereby refusing to recognize birthright citizenship to persons born in Puerto Rico, a right that is available to all mainland U.S. citizens. As a result, the Court upheld the validity of the openly racist and imperialist Insular Cases. This is simply indefensible and an open sore on the Court and this country’s racial legacy. Before a further critique of the decisions making up this Court’s latest support for colonialism and the reaffirmance of subordinate membership, an inquiry into the Old Insular Cases is in order.
Over the past few decades, healthcare providers have increasingly consolidated into large conglomerates, leading to negative outcomes such as higher healthcare costs and lower-quality care for patients. In 2021, the Biden Administration appointed Lina Khan to lead the Federal Trade Commission (FTC), the agency responsible for enforcing antitrust laws against corporations engaging in anticompetitive behavior. While the anti-competitive practices of large healthcare providers have attracted scrutiny from antitrust scholars, the FTC faces significant obstacles in prosecuting these providers due to state governments granting them immunity from federal antitrust laws under the state action immunity doctrine. This note examines the state action doctrine and proposes a new three-pronged test for judges to apply when adjudicating challenges involving the doctrine.
In early 2023, the Federal Trade Commission proposed a rule to ban noncompete agreements in employment. By the end of the comment period, the proposed rule had drawn nearly 27,000 responses. This was perhaps unsurprising, given that one in five American workers labors under a noncompete agreement. The proposed rule drew both support and criticism, and even before the FTC issued its final rule in April 2024, opponents vowed legal challenges. By July, the U.S. Supreme Court had overruled Chevron deference, setting up the FTC’s rule for an even more unsettled future. In the aftermath of Loper Bright, this Note proposes a narrower solution, tailored to a single industry in which noncompetes are pervasive: broadcast news. Far beyond simply affecting the workers in this industry—who are often paid poorly by the massive media companies that employ them—and limiting their postemployment opportunities, this Note acknowledges that when the press is restricted from fulfilling its critical societal role, we all suffer the consequences.
You are your reputation. A good one is a prized possession for businesses and individuals alike. And, as with most valuable assets, what takes years to painstakingly build may take only a day or a few keystrokes to destroy. Particularly in today’s digital era, the impact of a false accusation or unfair negative characterization against an individual, business, or other organization can be disastrous. The damage quickly and intensely escalates as information spreads like wildfire through social media and other online platforms and communication avenues. When a competitor, customer, reporter, podcaster, consumer advocate, watchdog organization, or other party libels (makes false written remarks about) or slanders (makes harmful spoken remarks about) your client or your client’s business, the damage can be devastating in the short term. It can also be virtually impossible to undo in the longer run. Fortunately, the law provides ways to fight back, minimize future damage, and, to some extent, undo past harm done. With the benefit of having both pursued and defended many defamation actions, we will describe, in practical terms designed to be helpful whether you are bringing or defending an action, the key promises and pitfalls of defamation lawsuits. We will sketch out a roadmap for bringing a successful defamation action while also identifying some of the less-understood challenges litigants will likely face along this unusual litigation voyage.
The Supreme Court’s decision in NCAA v. Alston sparked a seismic shift in college athletics, ushering in a new era of Name, Image, and Likeness (NIL) opportunities. Finally, student-athletes can profit off their own likeness. The primary vehicle through which student-athletes receive their NIL compensation is through legal entities called “collectives.” Although their operations vary, all collectives function as intermediaries between NIL compensation and student-athletes. Donors or alumni looking to donate funds to particular college teams will give their funds to these collectives who will then pass these funds off to student-athletes. What is problematic is that some of these collectives have ventured beyond the legal sideline. Shockingly, a significant number of these collectives have secured 501(c)(3) non-profit status from the IRS because they are supposedly operating for a “charitable purpose.” Paying student-athletes to complete negligible community service, however, is not a recognized charitable purpose under the tax code. Therefore, the IRS should—and likely will—revoke the tax-exempt status of these non-profit collectives. Once this happens, a legal battle is likely to ensue, pitting the IRS against non-profit collectives fighting to maintain their non-profit status. The IRS will argue that funneling money to college athletes via collectives should not be tax-exempt. Nonprofit collectives, on the other hand, will contend their activities further a legitimate charitable purpose and therefore deserve to be tax-exempt. Despite non-profit collectives’ “Hail Mary” argument, the IRS should prevail. Consequently, NIL collectives will be required to operate as for-profit entities, preserving the true meaning of charity and discouraging tax evasion.
Conservative Supreme Court Justices have recently expressed heightened concerns about prosecutorial power in cases involving former President Donald Trump and the Capitol siege on January 6, 2021. Making good on those worries, the conservative majority in Fischer v. United States, 1 rested its decision in part on theoretical concerns about government overreach. The Department of Justice has pushed back on those concerns, but to this point, the debate has been mostly rhetorical and hypothetical. This essay attempts to fill that rhetorical void—and concretely answer the concerns animating Fischer—with evidence from actual cases. A survey of ten January 6 cases directly answers the Justices’ hypotheticals and lends strong support to the Fischer dissent’s conclusion that such “fear is overstated.”2 Those real cases also support Solicitor General Elizabeth Prelogar’s argument that Department prosecutors have demonstrated meaningful restraint in bringing the most serious charges against alleged rioters.3 And because it took just a couple of hours to find ten cases proving the point, this case study suggests that the Justices’ fears of prosecutorial overreach in politically charged cases—which clearly animated the Fischer majority’s textual analysis—are unnecessary and should not have guided the decision-making process in Fischer, or in other relevant pending cases.
This article argues that – even if it does so in the exercise of its enumerated powers – when the federal government limits the people’s exposure to potentially untrue information or supposedly harmful ideas, it exercises a general police power that it does not have and runs afoul of basic constitutional principles. To this end, this article examines the problem of misinformation and the rise of foreign influence and “fake news” as matters of legal concern. It then considers the TikTok Ban and laws like it as manifestations of governmental paternalism. It argues that, in the context of the United States federal government, such paternalism is problematic for two reasons: In the abstract, governmental paternalism conflicts with basic principles of representative democracy. More concretely, when the federal government enacts laws sweepingly intended to protect Americans from themselves, it reaches beyond its legitimate limits and exercises a general police power that it does not, in fact, have.
The advent of direct-to-consumer (DTC) telemedicine platforms has been met with both applause and criticism. On the one hand, supporters praise their role in increasing access to care and empowering individuals to seek treatment for conditions they otherwise might not. Yet, others criticize the platform model for encouraging inappropriate prescribing and overprescribing, and the downstream negative consequences that has on health. At the epicenter of the debate is disagreement about the role of the consumer in the healthcare context. The healthcare system in the United States has experienced a movement toward patient-centered care. Patients are increasingly encouraged to play an active role in their healthcare experience, and direct-to-consumer advertising (DCTA) is one mechanism to facilitate that involvement. Meritorious qualities like informed consent and increased decision-making power are inherent in patient-centered care. However, doctors, regulators, and consumers themselves have called into question the appropriateness of DTCA insofar as it encourages self-diagnosis and misleads consumers to pursue potentially inappropriate, unnecessary, or harmful treatment plans. Many scholars have discussed the benefits of the platform model as well as potential hazards associated with a lack of meaningful regulation in the online prescription space. This Note focuses on the proper regulatory balance between federal and state governments. Part II briefly describes DTC telemedicine, the current regulatory landscape, and arguments both for and against greater platform regulation. Part III suggests a federalism-driven regulatory scheme, particularly modifications to state telemedicine laws. Part IV briefly concludes.
Henderson and Krishnamurthi’s new paper—A Wolf in Sheep’s Attire: How Consent Enfeebles Our Fourth Amendment (hereinafter Sheep’s Attire)—powerfully advocates for reform to the consent doctrine. The paper is thoughtful, well intentioned, and useful for challenging core assumptions about the law to help us evaluate how it should work. The piece is also fun to read as the authors breathe real-world insight into old doctrine. In the end, though the article flirts with a categorical rule about consent searches, and while the authors “think it categorically unreasonable for police to ask individuals to forgo their rights” in the context of Fourth Amendment searches premised on consent, they stop short of calling for a total ban on consent searches. Instead, they seek to abolish the Fourth Amendment consent doctrine except in various “emergency” circumstances.
This response makes four points. The first two address the ubiquity of racialized police violence in America and how this fact (of both present and history) may impact how to view the proposal in Sheep’s Attire. Particularly when juxtaposed against the legacy and reality of racialized terror, I suggest, police seeking consent to search may amount to act of violence or a very real threat of violence. The third point deals with the emergency-only proposal and raises some doubts about how issues related to the “emergency” doctrine will be adjudicated. The emergency-only consent doctrine is creative, but it seems the proposal does not solve all of the problems it sets out to fix and may necessarily involve unbalanced adjudication about what constitutes an “emergency” that ditching the inquiry about “what constitutes consent” was supposed to fix because it will still be judges making the decisions (and often relying on police narrative versus a criminal defendant to resolve them). Fourth, in risky fashion, I offer a proposal that does not involve abolishing the notion of consent searches categorically, or limiting them to emergency situations. Instead, what if we consider that the issue of voluntariness of any situation where consent is sought should be a question of fact decided by a jury rather than a question of law decided by a judge? In this thought experiment, imagine that the question of whether a search is consensual is not decide by a judge using some invented set of factors but is, instead, placed in the hands of the legal system’s proxy for democratic adjudication—the jury. Thorny questions about how consent is defined wash away. Thorny questions about what constitutes an emergency and other inquires mandated by the Henderson-Krishnamurthi proposal also fade away. In this universe, a pre-trial jury answers the question, plain and simple.
The law of space is governed by a set of international space treaties ratified in the 1960s and early 1970s when human space exploration first began. These treaties were written at a time when space activities were carried out by governmental entities and thus provide that disputes arising in outer space be addressed through diplomatic channels between nations. One of these treaties, the 1972 Liability Convention, provides that a “launching State” is absolutely liable for damage occurring in outer space caused by a space object launched from its territory. Now that the space industry landscape has dramatically changed and private actors have entered the satellite industry, significant questions remain on how disputes between private parties and governments may be resolved under the current framework and how the framework should be updated to reflect the modern space industry. This Note argues that the existing legal framework surrounding disputes arising in outer space is inadequate to address the modern needs of the space industry. Part II describes the current liability regime governing space activities and illustrates the inadequacy of this framework in the context of recent satellite disputes. Part III describes efforts by the International Law Association (ILA) and Permanent Court of Arbitration (PCA) to design dispute resolution systems
for space-related disputes and discusses why these attempts have gained little to no traction in the space industry. Part IV argues that the Liability Convention should be amended to provide all space actors with access to binding arbitration for disputes arising in outer space and place liability directly on the entity that launched the space object, regardless of public or private status. Part V briefly concludes.
On May 6, 2021, an extraordinary, 25-page concurring opinion was published in a decision by the U.S. Court of Appeals for the 11th Circuit that provided the following four reasons the Supreme Court should reconsider its long-standing doctrine that Article III of the Constitution prevents federal courts from hearing civil cases unless plaintiffs show that their claims arise out of “injury-in-fact.” The doctrine is (1) incoherent in theory and unworkable in practice, (2) manipulable to serve policy-driven decisions, (3) inconsistent with historical practices in the Founding Era,5 and (4) not grounded in the text of Article III. Parts I – III of this essay briefly review judicial decisions and legal scholarship that support or provide perspective on the first three reasons why the Court should reconsider its Article III standing doctrine, with an emphasis on decisions and scholarship from 2021 to the present. These parts particularly benefit from the first author’s attendance in September 2023 at a conference on Article III Standing hosted by the Constitutional Law Institute at the University of Chicago Law School. Part IV is a more extended analysis of the fourth reason, the failure of standing doctrine to be grounded in the text of Article III, drawing on interdisciplinary law-linguistics collaboration in which the authors have participated on this issue going back to 2019.
Police violence has spawned numerous political, legal, and scholarly ideas over the past several years. Since the 2020 uprisings after the killing of George Floyd, the conversation on police, their usefulness, their upstandingness, their credibility, their power, and their centrality to our deeply broken criminal legal system has grown louder, and, in many cases, richer. In an interesting turn, the trend in criminal law scholarship focusing on police is to advocate easing the prosecution and conviction of police crimes. This is in tension with the general thrust of decades of criminal law scholarship, which is almost exclusively about reducing, if not eradicating, our criminal legal system. Recent scholarship advocating incarceration for police is not exceptional, however. Professor Hendricks’ Tolling Justice is a significant contribution to this kind of literature. It finds that in numerous cases, crimes by police went unprosecuted because the Statute of Limitations (SOL) for that crime had passed by the time a prosecutor discovered or expressed interest in prosecuting the crime.The Article then proposes a solution of eliminating the SOLs for crimes committed by police. Despite the descriptive power of Tolling Justice, however, this response critiques the ultimate conclusion that the SOLs should be eliminated for police crimes.
Popular and academic discourse about American public law is all too often oversimplified and reductionist. In Litigating Trans Rights in the States, Professor Yeargain provides an important and nuanced take on how and why trans rights advocates should take a more holistic approach to American public law. Specifically, Professor Yeargain argues that trans rights advocates should pursue their claims under state constitutions while also making claims under the federal constitution. I see three core arguments in Professor Yeargain’s article in support of this claim. First, they argue that even when the Supreme Court finds an applicable federal constitutional right, state constitutional rights can augment the federal right in important ways and provide a failsafe against Supreme Court backtracking. Second, state constitutions often provide stronger arguments for expanding equality and privacy protections because they can include more detailed text, have more modern and relevant origin stories, and be applied by courts using more progressive forms of judicial review. Third, as public opinion evolves regarding trans rights, state constitutions offer more accessible amendment procedures that allow for codification of trans rights by popular majorities in individual states
The start of 2021 ushered in historic turmoil for financial markets. Millions of retail traders on the online discussion platform Reddit collectively inflated the stock prices of struggling companies in attempt to cash in on enormous profits and stick it to the Wall Street elite. During the tumultuous trading period, stock prices fluctuated dramatically, at times increasing several thousand percentage points. Retail traders, institutional investors, and hedge funds suffered billions of dollars in losses. To protect the efficiency and integrity of financial markets, courts must apply federal securities law in a consistent manner to combat the facially legitimate but coordinated manipulative practices of retail investors. This note argues that Rule 10b–5 of the Securities and Exchange Act of 1934 should be construed broadly by applying the intent-based approach adopted by multiple circuit courts and the SEC to prohibit open-market trading practices intended to harm certain classes of investors.
The 2023 United States Supreme Court decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith is the first copyright decision in decades to visit the concept of fair use and transformative use. In a fiery majority decision with an even fiercer dissent, the court restricts the concept of fair use creating a lasting impact on derivative works, licensing, and appropriation art. Arguably restoring balance to factor one, purpose and character of the use, it questionably conflates the analysis of factor four, market effect, in favor of affirming factor one’s analysis as the justification premise as originally posed by Judge Leval in 1990.
Facing the perils of climate change more than ever, young people are looking for new strategies to hold the United States government accountable for decades of policy that has contributed to global warming. One of these strategies is to utilize the courts in order to achieve this goal. This Note argues that not only do federal courts have the authority to declare a constitutional right to a clean environment, but they also have the ability to enforce such a right without violating the separation of powers doctrine by using an enforcement framework of the type utilized in Brown v. Board of Education II (Brown II).
We appear destined to be periodically sickened by videos of the life being beaten, stomped, and choked out of defenseless victims detained by police in poor, minority communities no matter how many people—sincerely or as flak to cover up their indifference —clamor for unity and change. Given our Pollyannaish view that the mission of police is based on the social consensus theory that they exist to serve and protect all communities, we cannot effectively fashion change that will significantly curtail the brutality. This Essay will reveal the hidden practices that police in our marginalized communities have improvised to veil the brutality not caught on video and the psychodynamics of policing that, in addition to racial bias, foster gratuitous aggression. The Essay argues that, consistent with police brutality’s actual underpinning in conflict theory, the most popularly espoused solutions are token palliatives. And finally, it posits that, as a form of community control, conflict theory entails a paradox.
Professor Noah Smith-Drelich’s Funding the Police is a welcome addition to the growing literature on structural barriers to implementing abolitionist visions of public safety. Professor Smith-Drelich’s central argument is consistent with our findings, in Defunding Police Agencies, that external funding of local police agencies imposes a set of “indirect constraints” that ensure robust police budgets and disincentivize spending on non-police social programs that might better ensure public safety. We believe, however, that Professor Smith-Drelich may be too sanguine about the deterrence potential of constitutional tort judgments.
The costs of climate change are not just high, for many folks they are prohibitive of a safe and secure future. Despite the astronomically high human (and non-human) costs associated with climatic change, as a society, we remain loathe to change our ways. Just as Professor Raymond Brescia suggests in Course Correction with respect to a very different but remarkably analogous phenomenon, golf, fossil fuel consumption remains “woven into the cultural fabric of life” and, our reliance on fossil fuels as the engine of our economy and the foundation for our collective sense of economic security has “become institutionalized” shaping our collective “behavior and beliefs.” Drawing from Brescia’s thoughtful piece, here, we explore what theories and aspirations of grand design might bring to the climate movement.
In law reviews over the last decade, scholars have offered a range of diagnoses of the problems underlying police misconduct and a broad array of proposals to address it. A significant strand of critique has focused on the rules and institutions that enable police officers who kill to avoid losing their jobs. It is particularly alarming when management of a police department decides an officer’s misconduct is so egregious as to warrant termination and an arbitrator overturns that decision and reinstates the officer. Little wonder, then, that proposals for police reform have included removing from arbitrators the power to overturn discipline so that it can be placed “in the hands of individuals who prioritize the public interest.” To suggest, however, that arbitrators who handle police discipline cases somehow fail to consider the public interest is hardly likely to persuade even some, like Professor Michael Z. Green, who see serious problems with American policing. After all, municipalities agree to the contracts that provide job protections and legislatures have adopted statutes granting police procedural and substantive protections against job discipline. It therefore surprises me not at all that Green’s article, Black and Blue: Police Arbitration Reforms, responds so strongly to the suggestion that arbitrators are the culprits behind enabling police misconduct.
In their response to Regulating Democratized Investing, Professors Gramitto Ricci and Sautter advocate for reforming the public education system in lieu of my regulatory proposal for protecting an emerging class of “ultra-retail investors.” While I support the educational reforms they propose, I continue to believe that Robinhood and its competitors warrant a shift in regulatory strategy.
Imagine the following scenario: a hacker breaks into a large company’s database and accesses its customers’ private information including names, addresses, credit card numbers, and dates of birth. A tricky question often arises: whether the breach itself constitutes a risk of future harm sufficient to demonstrate a concrete injury-in-fact. This Note discusses how data breach defendants and plaintiffs may navigate the post-TransUnion world of standing. It explores the likely application of TransUnion in the data breach context and addresses how plaintiffs and defendants, respectively, can embrace it as either a sword or shield.
Hybrid representation refers to a model of representation where the defendant represents themselves but also has the assistance of counsel, the defendant and lawyer function as co-counsel. While the Supreme Court has said that a defendant is not entitled to what the Court labeled the “special appearances [of] counsel, it is not clear why a defendant is barred from presenting their own defense and having the assistance of counsel when we consider the plain meaning of the Sixth Amendment and other references to the right to counsel in state constitutions, historical precedent and other decisions of the Court that give a defendant the right to dictate the objective of the defense.
In 2022, Congress amended the Federal Arbitration Act (FAA) through the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This amendment is being abbreviated to a rather clumsy acronym: EFASASHA. EFASASHA allows a person alleging sexual harassment or sexual assault to invalidate certain arbitration agreements and joint-action waivers. This Essay demonstrates how the term “sexual harassment” in Title VII jurisprudence embraces sexualized harassment, sex-based harassment, pregnancy harassment, and harassment because of sexual orientation and gender identity. It argues that interpreting EFASASHA to include these types of harassment is not only consistent with the statute’s text, but is also the best way to proceed practically and normatively
Conservation easements have emerged as an important tool in the constant struggle to balance economic advancement with environmental and historic protection, and have even been utilized for community development. Congress permanently codified an income tax deduction for the charitable donation of certain conservation easements, but several regulatory requirements must be met to qualify for a deduction. This Note argues that a more practical approach to interpreting the regulations is preferable because it maintains beneficial community development incentives that support the aims of the statute, and ultimately signals that more effective methods of policing the deduction should be prioritized.
Given Congress's Article I powers of the purse, political science scholarship on federal spending long focused on Capitol Hill to understand the geographic allocation of federal outlays. More recently, theoretical arguments around presidential behavior and empirical studies of federal spending have examined the role of the executive branch in shaping federal grant spending. In a book and series of articles, we argued that “electoral and partisan incentives combine to encourage presidents to pursue policies across a range of issues that systematically target benefits to politically valuable constituencies.”
Intentional torts are, and can be, insurable. We agree with Professor French when he concludes that the default rule in insurance law should be that liability insurance can provide coverage for intentional torts, absent compelling reasons. Indeed, Professor French notes a number of examples where a variety of intentional torts are already insured as a matter of course in a number of liability insurance contexts. He proposes that the public policies of both freedom of contract and innocent third party victim compensation support this approach and that courts...
Abraham Cable’s article Regulating Democratized Investing is not only topical, but also necessary. Cable’s article tackles the debate on regulating mobile-first investing apps in a sophisticated fashion that carefully considers the interests at stake such as investor protection, market protection, and market accessibility. It largely opposes paternalistic regulation, which would raise unsurmountable barriers at the entrance of the stock market for retail investors. But it concedes to a form of regulation that in Cable’s own words “serves ultra- retail investors a modest portion of what they really want.”
The Free Speech Clause of the First Amendment clearly inscribes the belief that speech without state interference is foundational to the American system of governance. But deciding precisely the contours of the scope the Clause protects is dubious. “Political and ideological” speech receives the greatest protection,4 whereas speech with negligible political and social value— obscenity, defamation, threats, or speech inciting violence or integral to illegal conduct—receives none...
What is the role of businesses in the insurrection at the Capitol on January 6, 2021? What is the role of businesses in the current Russian aggression against Ukraine? Can businesses play an important role in exacerbating or combatting corrupt criminal conduct? This Essay considers these issues.
During the gubernatorial election in 2018, Ohio’s Democratic (Cordray) and Republican (DeWine) candidates squared off in a series of televised debates in Dayton, Marietta, and Cleveland. Staged by three non-profit corporations (including two private colleges) the debates were a culmination of behind-the-scenes discussions between the DeWine and Cordray campaigns. No other candidates were invited...
What exactly do the Asian American members of the plaintiff in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College want? They wish to be treated fairly in their applications to Harvard, of course, per the name of the organization of which they are card-carrying members. But life is not always fair, and not everyone can get into Harvard, even if they— identified . . .
Peter Lee has contributed an impressive addition to a new, fast-rising wing of IP theory. Like others working alongside him, Professor Lee’s contribution features the transactional and organizational functions of intellectual property rights (IPRs). In particular, copyrights. His attention is trained on the entertainment industry, and his main goal...
Farber et al.’s Thinking Globally, Acting Locally: Lessons from the U.S., Japan, and China (the “Article”) asks a critical question: “What prompts some state and local governments to take [climate] action while prompting others to resist?” In the U.S. context, the literature on this question, as the authors point out, is quite extensive. The authors contribute to this literature most obviously...
Charquia Wright’s article, Circuit Circus: Defying SCOTUS and Disenfranchising Black Voters, tells a story that is disturbing for two separate reasons. First, focusing on a 2016 Sixth Circuit case, Northeast Ohio Coalition for the Homeless v. Husted (NEOCH), Professor Wright demonstrates how a circuit court, deliberately or inadvertently, can circumvent certain types of Supreme Court precedent...
In their article Taxation and Law and Political Economy, Jeremy Bearer-Friend and co-authors make an important contribution to LPE by grappling with the relationship between economic incentives and the LPE goals of democracy, equality, and attention to power. Reviewing the emerging LPE approach, the authors identify two diverging strands: an “exclusive” LPE approach that rejects the influential “law-and-economics” focus on efficiency and a “pluralist” strand that would contextualize and qualify this law-and-economics by emphasizing political and normative commitments to democracy and equality...
When college coaches face accusations that they violated NCAA rules, their careers can be at stake. It may be in coaches’ best interests for their peers to determine the fate of these allegations, as fellow coaches likely appreciate the intricacies and pressures that accompany today’s highly commercialized college athletics. Thus, it may hearten coaches facing allegations of NCAA rules violations that the NCAA advertises its process as peer reviewed. In reality, however...
The governing boards of nonprofit organizations, and particularly of nonprofits that serve low income and other vulnerable populations, fail to adequately include the populations that they serve. At least this is the common understanding among people familiar with these boards. Professor Atinuke Adediran not only confirms the existence of this problem but clarifies it in four important ways. Professor Adediran also proposes concrete steps to address it; although, the clarity she has brought to the problem raises the question of whether she could have been bolder in her proposed solutions.
Thinking Globally, Acting Locally looks anew at why some cities and other subnational jurisdictions are seeking to limit climate change, a question that has attracted the interest of legal scholars, political scientists, and others since the 2000s. The starting premise for this literature is that subnational actions to reduce greenhouse gas (GHG) emissions are puzzling because these policies may impose costly obligations on local actors that mostly benefit people elsewhere.
In U.S. Fantasy Sports Law: Fifteen Years after UIGEA, Marc Edelman, John T. Holden, and Adam Scott Wandt comprehensively recount the eventful decade-and-a-half overlap between fantasy sports and the Unlawful Internet Gambling Enforcement Act (“UIGEA”). But the authors do not stop there. Edelman, Holden, and Wandt also include a detailed examination of several forward-looking cybersecurity concerns—consumer security, anti-money laundering, and automated bots—that emanate from fantasy sports. Further, the authors pinpoint recent Internal Revenue Service (“IRS”) scrutiny of the industry and the potentially “deleterious effect” on smaller companies if the IRS treats certain fantasy sports companies like traditional sports betting operators. There is one recent development Edelman, Holden, and Wandt do not discuss, however.
Over half a decade ago, law professor Cynthia Lee offered an intriguing argument in an article titled Race, Policing, and Lethal Force: Remedying Shooter Bias with Martial Arts Training. In short, Professor Lee argued that if law enforcement had martial arts training, they would be less likely to incorrectly assume that Black suspects are armed and shoot them. Since the publication of her article, police killings of unarmed and nonthreatening Blacks has persisted resulting in a national outcry. In this essay, I revisit Professor Lee’s argument in a more nuanced manner.
We need some new intellectual property stories. By stories, I don’t mean entertaining fictions. I mean instead accounts or explanations that make sense of the world as it is lived by everyday people. Most of our relevant intellectual property laws were forged in the mid-twentieth century and have failed to keep pace with the transformations in creative and innovative practices of the twenty-first. Being out-of-sync or failing to recognize broader existing stakeholders means laws are poorly aligned with on-the-ground realities and are out-of-touch with values and interests of the people laws serve.
In the debate surrounding whether the District of Columbia should become our nation’s 51st state, understanding the relevant constitutional provisions implicated is key, and there are at least three: (1) the Twenty-Third Amendment, (2) Article I, section 8, clause 17 (the District Clause), and (3) Article IV, section 3 (the Admissions Clause). More importantly, these provisions shed light on whether Congress has the power to radically transform both the size and status of the District of Columbia by simple legislation. In short, it does not...
In 1971, Lake Erie was so polluted that Theodor S. Geisel, a.k.a. Dr. Suess, referenced the lake to convey the toxic consequences of resource exploitation to readers of his children’s book, The Lorax. The Lorax tells the story of an avaricious entrepreneur called the Once-ler who sets up an industrial operation in a Suessian environment that involves toppling Truffula trees...