SelectedWorks @ Widener University Commonwealth Law School
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The Constitutional Right to Save the Environment
No full textMore than 50 years ago, Franklin Kury drafted and championed an Environmental Rights Amendment to the Pennsylvania Constitution. His book, The Constitutional Question to Save the Planet: The Right to a Healthy Environment (ELI Press 2021), expands upon the story of his amendment to demonstrate how its principles can be the basis for addressing climate change in the rest of the world. On October 13, 2021, the Environmental Law Institute hosted Kury and leading experts (Franklin Kury, John Dernbach, Julia Olson, and Barry Hill) to explore the impact environmental rights amendments can have on stabilizing the climate system through legal channels at the state and federal levels. This is an edited transcript of that discussion
Overmedicalization of domestic violence in the noncarceral state
No full textScholars have recently cast doubt on the justifications for criminalization of domestic violence, arguing that the criminal legal system proves inadequate in preventing future battering. Domestic violence, the argument continues, is largely a public health problem, which calls for implementing noncarceral measures to effectively address it. Decriminalizing domestic violence aligns with broader reforms to defund police and decrease prosecution of many other crimes. A noncarceral alternative to criminalization requires divesting resources from police, prosecutors, and prisons, while investing resources in nonpunitive institutions, including healthcare systems.Health-based reforms to curb domestic violence underscore the central role that mental health measures play under a noncarceral regime. Rejecting the reliance on criminal measures to prevent domestic violence would make mental health professionals responsible for treating batterers who pose a risk to their intimate partners. Yet, conceptualizing domestic violence through a public health framework raises a host of concerns because medicalized interventions incorporate noncriminal, yet inherently coercive measures. These include mandatory treatment programs, surveillance, monitoring, reporting, and involuntary civil commitment. The emerging trend to adopt mental health interventions in lieu of criminal sanctions highlights the perils of overmedicalization of domestic violence, including depriving batterers’ liberties without robust adversarial proceedings and other due process protections.In examining the interrelationship between criminal law and public health’s mandatory measures, this Article makes two novel contributions. First, it argues that overmedicalization of domestic violence is yet another facet of the general medicalization phenomenon, defined as unjustifiably applying medical solutions to social problems. Second, this Article uses the treatment of domestic violence as a case study to demonstrate that alternatives to criminalization, often touted as “progressive” reforms, carry their own risks. The implications of this argument extend far beyond the domestic violence context; a myriad of medicalized substitutes to carceral tools exert substantial social control over people by managing and disciplining vulnerable communities, especially people of color and other historically disadvantaged groups. Overmedicalization may thus result in replacing states’ problematic “governing through crime” strategy with the equally troublesome “governing through medicine” model, which perpetuates similar harms that the criminal legal system has created
Liberating Sustainable Development From Its Non-Historical Shackles
No full textIn this Article, we argue that sustainable development is historically a much broader and more societally beneficial concept than it is often understood to be, and that it is often limited, particularly in the United States, by the supposition that it is just about the environment, or about environmental and energy law. If we really want to understand sustainable development, in other words, we need to liberate it from its non-historical shackles.Sustainable development is a broad-spectrum conceptual framework for fostering human wellbeing by integrating environmental protection and social wellbeing with economic development and peace and security. It does so in a way that seeks to optimize all of them concurrently, instead of treating them as inherently opposing or unrelated concepts. At its core, sustainable development would transform how Americans conceive of and pursue environmental protection—and over time the law that supports and drives development. Sustainable development has the substantive capacity to be one of the most important and potentially transformational ideas to come out of the last century. Some scholars have described it as an idea or principle of the same level of fundamental importance as freedom, equality, and justice.This Article provides an overview of the history of sustainable development, including the Sustainable Development Goals (SDGs) adopted in 2015, showing that sustainable development has consistently been about changing development patterns, and not simply about the environment. It then shows the quite different and more environmentally-oriented and environmental-law-oriented way that sustainable development has been framed in the Unites States—sustainable development’s non-historical shackles. The Article explains two key benefits of unshackling sustainable development from this limiting perspective. Sustainable development and particularly the SDGs can enrich and strengthen nearly all U.S. policymaking by helping to spot issues and develop law reform agendas. In addition, sustainable development can activate all stakeholders, and is already doing so—something that is vitally necessary if we are to effectively address the many challenges we now face
Lawyering to Make a Difference: Ethics and Leadership for a Sustainable Society
No full textVirtually all lawyers can work to address climate change and help build a sustainable society in their existing jobs. The foundations are an understanding of sustainable development, a solid grounding in rules governing a lawyer’s legal and ethical responsibilities, and a willingness to learn and practice systems leadership skills—each of which is discussed in this Article. Changing legal practice to combat climate change takes dedication, perseverance, tact, hard work, and patience. But it can be done. And it needs to be done—by as many lawyers as possible.This Article provides an introduction to concepts addressed in greater detail in Sustainability Essentials: A Leadership Guide for Lawyers (John C. Dernbach, Matthew Bogoshian, and Irma Russell, American Bar Association Press, 2022)
Regulated Immigrants: An Administrative Law Failure
No full textCongress’ grandest reform of administrative law recently celebrated its 75th birthday. The Administrative Procedure Act (APA) is regarded mostly as a success that set the stage for modern federal governance. This article uncovers a major flaw. The APA has failed to establish a deportation system that satisfies administrative law process values.In retrospect, this failure is not surprising given that Congress never fully integrated immigration law into administrative law. The unique nature of regulating immigrants was not a driving force in the creation of the APA. Instead, the APA was molded by concerns about the New Deal and the increasing power of the federal government over industry. The regulation of human beings by deciding some of life’s most basic questions, including whether someone could live with immediate family members, simply was not the focus of reformers. Even once enacted, the APA never had much of a chance to shape deportation adjudication. Shortly after the APA’s enactment, Congress exempted deportation adjudication from the APA and created a parallel administrative law universe. This alternative structure has resulted in an adjudication system that is inefficient, unacceptable, and only questionably accurate.Even if the APA applied to deportation proceedings, that would not fix what ails the system. Administrative law, as currently formulated, lacks the right doctrines to regulate the regulation of immigrants. New principles are necessary. To develop these new doctrines, we need to divorce immigration law from the administrative law debates that are charged with arguments about the power of the federal government to regulate the economy. The construction of new principles should be guided by the extreme power imbalance between the government and the regulated parties in immigration law, the effect of the regulation on fundamental issues of human existence, the prominent role of detention in civil immigration adjudication, and the lack of decisional independence for immigration adjudicators
The Property Law of Tokens
No full textNon-fungible tokens—or NFTs, as they are better known—have taken the world by storm. The idea behind an NFT is that by owning a certain thing (specifically, a digital token that is tracked on a blockchain), one can hold property rights in something else (either a real or intangible asset). In the early part of 2021, NFTs for items ranging from a gif of a pop-tart cat with a rainbow tail, to Twitter CEO Jack Dorsey’s first tweet, to a New York Times column (about NFTs!) have sold for millions of dollars over the internet. Promoters assert that NFTs are the “future of digital property,” and that they herald a day when “government will lose its unique power to mint currency and protect property.” And these promoters reach beyond the typical crypto crowd. Giants of finance and industry are promising to extend the use of NFTs to securities, industrial assets, and real estate in the coming years. Moreover, this crypto token craze comes at a time when the American Law Institute and the Uniform Law Commission are in the midst of recommending revisions to U.S. commercial law to accommodate the digital age. In this Article, we take a more sober look at the tokenization phenomenon and, in doing so, describe what exactly it means when it comes to property rights. What can a purchaser of a token expect? How is a token actually connected to the underlying asset, if at all? What does the law—not the hype—have to say about it? We show that tokenization under the law actually has a long history, backed by practical economic considerations and animated by strong theoretical underpinnings. We also show that NFTs have neither of these attributes. Additionally, our Article surveys a dataset of terms of service from the most prominent NFT platforms in order to exploit both their disconnect from real legal effects and their puzzlingly contradictory promises about the relationships between buyers, seller, and the platform. Our project aims not only to inform current commercial law reform efforts, but it also offers a policy prescription for policing the NFT market
Under-Prosecution Too
No full textConventional wisdom holds that the criminal legal system suffers from over-enforcement, including over-prosecution. This account, however, obscures data suggesting that some crimes, including sexual assault, are under-prosecuted. High attrition rates in sexual assault cases are caused not only by insufficient reporting and inadequate police investigation but also by prosecutors’ frequent refusal to file charges due to what they describe as “insufficient evidence.”Yet, studies suggest that the designation “insufficient evidence” is often a pretext, disguising the actual reason for prosecutorial declination decisions - prosecutors’ prediction of the low likelihood that hypothetical juries would convict, a test commonly referred to as the “convictability” standard.The under-prosecution of sexual assault is an especially disconcerting problem because victims of these crimes are often marginalized, including racial and other minorities, who have been under-served by a legal system that has failed to provide them with equal protection of law. The problem, however, has received only scant scholarly attention.This makes two contributions to existing literature. First, it argues that the convictability standard that prosecutors rely on to assess evidentiary sufficiency should be rejected. In its stead, this Article proposes the “reasonable prosecutor” standard for prosecutors to adhere to in deciding whether to bring sexual assault charges. Under this standard, the threshold is whether, as a legal matter, based on the law’s substantive definition of the crime and the likely admissible evidence, the suspect should be found guilty beyond a reasonable doubt. Second, this Article uses the under-prosecution of sexual assault as a case study for making broader arguments about the prosecutor’s role in promoting social justice goals. To send the expressive message that both defendants and victims deserve the law’s protection, this Article develops the Equitable Prosecution Model. The model uses the concept of equitable prosecution to justify a more vigorous prosecution of crimes like sexual assault that have largely been under-prosecuted. Drawing on a civil rights underpinning, and theorizing the roles for progressive prosecutors in curbing sexual violence, this model highlights the prosecutor’s role in bringing criminal charges for historically under-prosecuted crimes. It requires prosecutors to equitably balance defendants’ and victims’ conflicting interests. This model thus reconciles the goals of the BLM and #MeToo movements, demonstrating that they are complementary, rather than contradictory
Financial Innovation and Unforseen Consequences: SPACS, SEC Lending, and Shorts
No full textAlthough publicly traded “special purpose acquisition companies” (SPAC) have been trading for decades, the effect of the unique shareholder rights found in SPAC shares should be fully studied and compared with the rights of publicly traded non-SPAC shares. Because of their differences, SPAC shares will not necessarily behave in the same way as non-SPAC shares in certain situations. The short selling of SPAC shares offers a useful case study as well as lessons for regulators, investors, and short sellers about the unforeseen and unintended consequences of financial innovation in the otherwise understood corner of securities lending and short selling of securities. This article argues that market participants and regulators must fully understand the impact of the unique characteristics of SPAC shares that differentiate these shares from non-SPAC shares.1 The first part will discuss the nature of SPACs and the issuance of SPAC shares. It will then identify and discuss the unique characteristics of SPAC shares in comparison to nonSPAC shares. The second part will discuss the lending of SPAC shares and the potential consequences of the short sale of SPAC shares, focusing in particular on the right of a lender of SPAC shares to vote and redeem its SPAC shares in certain circumstances. The third part will discuss recommendations to SPAC lenders, words of caution to short sellers, and possible areas of additional study for SPAC shares by the Securities and Exchange Commission (SEC)