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Feminist Perspectives on Disaster, Pandemics, and Intimate Partner Violence
Full text linkThe COVID-19 pandemic brought international awareness to the likelihood of increased abuse of those in abusive intimate partner relationships because of the forced confinement with their abusers (Bettinger-Lopez and Bro, A double pandemic: domestic violence in the age of COVID 19, Council on Foreign Relations. https://www.cfr.org/in-brief/double-pandemic-domestic-violence-age-covid-19, 2020). While this awareness was much discussed, assistance to survivors of abuse was limited because survivors often could not reach out for help, nor could advocates wishing to offer assistance safely reach in to advise them (Taub, A new Covid-19 crisis: domestic abuse rises worldwide. https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html, 2020). The ever-present influence of the abuser prevented or limited the delivery of effective aid in many cases (Taub, A new Covid-19 crisis: domestic abuse rises worldwide. https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html, 2020). But this was not the first disaster to place those experiencing intimate partner abuse at greater risk. Other disasters have in various ways increased women’s safety risks both during and after crisis. Other crises routinely resulted in increased abuse of survivors in intimate partner relationships including sexual and other assault by intimate partners (Rao 2020; Sohrabizadeh Prehosp Disaster Med, 31(4):407–412. https://www.ncbi.nlm.nih.gov/pubmed/27212204, 2016). This chapter briefly identifies some forms of abuse experienced by women outside of the home during times of crisis and their connection to intimate partner abuse. Then, the impact of COVID-19 on intimate partner survivors will be explored and some of their experiences described. Gaps and flaws in nations’ approaches to gender violence are often highlighted during and after disasters. Lack of planning to protect survivors of intimate partner violence and other highly vulnerable populations during crises was exacerbated by the additional dangers brought by COVID-19. Primarily, the heightened dangers resulted from stay-at-home orders, which made services for abused partners more difficult to obtain and highlighted the possibility of unintended consequences resulting from policies designed to protect the public as a whole (Godin 2020). This chapter concludes by considering what has been lacking in strategic disaster planning, including what lessons have been learned thus far through the COVID-19 experience. Recommendations for effective disaster planning to protect survivors of intimate partner abuse, while also protecting other vulnerable populations, are suggested. This information is presented with the caution that as of this writing the global pandemic continues to limit access to hard data. Long-term analysis of the implications of the pandemic on Intimate Partner Violence (IPV) survivors awaits the passage of time
Spring 2019 Newsletter: The Docket
Full text linkCopy of the Spring 2019 issue of the UMass Law Library Newsletter, The Docket
Scholarships/Grants for Service Members and Veterans
Full text linkFlyer of scholarships and grants for service members and veterans from the Navy College Program and Department of Defense
Black Lives Matter as a Claim of Fundamental Law
Full text linkIn this Article, I argue that we should understand #BlackLivesMatter as a claim on the Constitution—a very special kind of constitutional claim, on the Constitution as fundamental law. It is a paradigmatic contemporary example of this category of constitutional law for citizens, one that reaches back past the roots of the American Revolution and underlies the logic of popular sovereignty at the core of our system. Section I develops a conceptual sketch of fundamental law and its features. Section II then turns to the content of “Black Lives Matter” as a constitutional principle and traces its position in the arc of Black constitutional thought, from the emancipatory protestantism of Frederick Douglass to the provocations of Judge Bruce Wright and beyond. Section III explains why this principle matches the features of fundamental law and why it matters—developing the idea of the “constitutional bases of respect” and exploring the consequences of “Black Lives Matter” as a mediating principle in several areas of constitutional doctrine
On Drugs: Presumption, Preemption, and Remedy
No full textThis essay explores the role of litigation in drug safety regulation and the role of drug safety regulation in litigation, exemplified by the 2017 National Health Law Moot Court Problem. Using the example of failure-to-update claims against generic drug manufacturers, this essay argues that pharmaceutical preemption doctrine would benefit from a tailored application of the presumption against preemption. It proposes a presumption that Congress does not intend to displace historic state remedies for injury without clearly saying so, focusing on the role of remedy to account for the evolving overlap in federal and state police powers over health and to more precisely calibrate the federalism values inherent in the remedy-regulation relationship
Beyond Cannabis: Psychedelic Decriminalization and Social Justice
No full textPsychedelics are powerful psychoactive substances which alter consciousness and brain function. Like cannabis, psychedelics have long been considered prohibited Schedule I substances under the Controlled Substances Act of 1970. However, via the powerful psychological experiences they induce, psychedelics are now being shown to be viable therapeutic alternatives in treating depression, substance use disorders, and other mental illnesses, and even to enhance the well-being of healthy individuals. In May 2019, Denver, Colorado became the first city in the country to decriminalize psilocybin (the active compound in “magic mushrooms”) — a potential major shift in the War on Drugs. Ballot initiatives for the decriminalization of psilocybin and similar substances are now reaching voters in other cities and states. What principles might justify this decriminalization — eliminating criminal penalties for, at a minimum, the use and possession — of psilocybin and other psychedelics? This Article provides background on psychedelics and a historic overview of the laws surrounding them. It then considers several potential justifications for decriminalizing psychedelics: (1) medical value; (2) religious freedom; (3) cognitive liberty; and (4) identity politics. Lastly, the Article proposes a reframed justification rooted in principles of social justice, namely neurodiversity
Big Waiver Under Statutory Sabotage
No full textThe Affordable Care Act’s State Innovation waiver allows federal agencies to suspend the most controversial parts of the statute for states to pursue alternative paths, while keeping the federal funding provided by the statute. This “big waiver” provision has the potential to enable states to pursue transformative health reforms, while preserving the affordability and universal coverage aims of the federal statute. Big waivers like this one carry theoretical promise, which largely depends on the strength of the federal statute’s baseline infrastructure. This Essay considers early implementation of the State Innovation waiver as a test for big waiver theory – and for cooperative federalism in health reform.
The fragmentation of the Affordable Care Act through litigation, legislation, and executive challenge has complicated both the State Innovation waiver’s intended implementation, and the theoretical promises of big waiver. Most recently, the administering agency’s new guidance stretches the ACA’s already-sizeable waiver beyond its statutory guardrails, even changing its aspirational title from “State Innovation” to “State Relief and Empowerment.” The embrace of the ACA’s big waiver by an administration hostile to the enduring statute suggests that the threats of big waiver swallowing its housing statute are real, and that the waiver may be wielded not as an instrument of innovation, but one of further fragmentation
Anthrogogy: Towards Inclusive Law School Learning
Full text linkAt the time it was introduced, andragogy did offer benefits over “chalk and talk;” where most law students passively took notes while one student at a time actively engaged with their professor in a Socratic dialogue. While andragogy has sustained several modifications and revisions over the last fifty years, it does not reflect the life stage or life experiences that blur the boundaries of childhood and adulthood for over half the current student body in most law schools. Andragogy, designed as a teaching methodology for traditional adults seeking continuing education or to gain credentials for upward mobility in their current profession, fundamentally differs from legal education, where students do not yet know the requirements for successful lawyering or effective representation of clients. The tremendous diversity of law students signals a need to adopt teaching methods to better reach students who look like no generation before them, as well as law students who look very similar to law students of prior generations. To develop better teaching methods, we need a better understanding of who are students are and what they need to succeed as students and professionals. Expanding on the work of sociologists Jeffery Jensen Arnett and Katherine Newman, this article will explain how law students are fundamentally different than prior generations, and how the development of a new life stage, that of “emergent adulthood,” is operating within law schools. This new stage of life, along with the dramatic demographic changes within the law student population, require a more inclusive teaching and learning methodology in law schools. This article will discuss and analyze the demographic changes within law schools as well as the features of emergent adulthood, describe how we can better meet the needs of all law students by understanding who they are. Drawing on research on cognitive science and learning, education, sociology, and economics, this article suggests that laws schools move from teaching methods developed for another demographic and adopt more inclusive term, andragogy, to describe teaching and learning methods designed to engage all students
The Commerce Clause, The Preposition, and the Rational Basis Test
Full text linkIn Gonzales v. Raich, the United States Supreme Court upheld the application of the federal Controlled Substances Act to bar the use of state-grown marijuana for instate personal medical use. In so doing, the Court ratified the expansion of Congress’ commerce power beyond any known limits. It abandoned the “substantial effects” test that it had used since 1937 and applied the “rational basis” test. This Article traces the historical development of Congress’ enumerated powers from the earliest cases, emphasizing the expansive view of commerce power found in Gibbons v. Ogden. From that strong beginning for the commerce power, the Article follows the various detours of the United States Supreme Court cases, some cases imposing now rejected limits on the commerce power, some setting the foundation for the modern test. The main thrust of the Article is to argue that both in terms of history and in terms of our federalist form of government that Congress’ commerce power in instances not involving the actual crossing of state lines should be limited to local activities that in a practical fact-based way have a substantial impact on interstate commerce. The Article asserts that the rational basis test should have no role to play in determining Congress’ power to regulate interstate commerce, that the rational basis test is not only historically unsupportable, but that it also represents a failure of the Court to play its appropriate role in protecting “Our Federalism.
Fall 2019 Newsletter: The Docket
Full text linkCopy of the Fall 2019 issue of the UMass Law Library Newsletter, The Docket