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Developmental Justice and the Voting Age
Get PDFSeveral municipalities have lowered the voting age to 16, with similar bills pending in state legislatures and one considered by Congress. Meanwhile, advocates for youth are trying to raise the ages of majority across an array of areas of law, including ages for diverting criminal conduct into the juvenile justice system (18 to 21); buying tobacco (18 to 21); driving (16 to 18); and obtaining support from the foster care system (18 to 21). Child welfare advocates are fighting the harms of Adultification, meaning the projection of adult capacities, responsibilities, and consequences onto minors. In legal and social history, seeing 16- and 17-year-olds as possessing adult capacities has connected with holding them responsible for adult decision-making, particularly in the criminal justice system, but also in disciplinary mechanisms at school. This effect is dramatically worse for children of color. These two movements are in tension; child welfare advocates are fighting Adultification while democracy advocates are fighting for younger entry into the adult political sphere. But the age of majority is not a technicality. It is a thick fabric of public and private laws formed for the protection of children and adolescents, an interwoven safety net, whose efficacy depends on the strength of the weave. Indeed, the age of majority plays a protective role in our 18-year-old voting age; the 16-year-old franchise exposes youth to constitutionally protected campaigning, inviting commercial and political interests to target teenagers with “political speech.” Currently, public law shields teenagers from this contact for fear they will be exploited, and private law enables parents to constrict campaign interactions with teenagers. Countless similar underappreciated harms of Adultification can carelessly deprive children of educational, housing, employment, and civic futures. The minor extant intrusions on the age of majority, such as the driving age, pale in comparison to the civic meaning of lowering the age of the franchise. When the voting age dropped from 21 to 18, states lowered their legal age of majority from 21 to 18 in response, influencing policies such as aging out of foster care and entitlement to child support beyond 18. As a core marker of citizenship, voting has had a powerful anchoring effect on ideas about civic maturity. Lowering the benchmark for civic maturity threatens to anchor a lower age for civic protection, as occurred when the 26th Amendment passed. This Article contends that 16- to 18-year-olds are entitled to their childhoods, as Greta Thunberg contends, with our protection and support, not to the burdens of adult hopes, adult expectations, adult uses, and adult consequences. It makes a claim for developmental justice grounded in participatory democracy. Lowering the voting age works at cross-purposes to the essential task of protecting youth from premature engagement with the criminal justice system, and with the long-term disenfranchisement that can come with that entanglement. With Adultification risking criminalization and criminalization risking disenfranchisement, current thinking about youth voting exposes disparities in public ambition for the future political participation of youth arising from the disparities in their childhood experiences
The Elastic Meaning(s) of Human Trafficking
Get PDFWhat is human trafficking? When is an expansive definition of trafficking justifiable? How does trafficking relate to other concepts—like domestic violence, sexual assault, labor exploitation, and prostitution—with which it often overlaps? These questions have become increasingly salient after the U.S. Congress defined the crime of human trafficking in the Victims of Trafficking and Violence Protection Act of 2000 (“TVPA”). Since then, all fifty states have passed legislation with varying definitions of the crime. Congress also has re-entered the field with subsequent legislation, expanding the crime to capture new conduct./= / \u3e/= / \u3eAs a result of legislative advocacy and judicial interpretation, the legal definition of human trafficking in the United States has now broadened to include a remarkably wide variety of actors and conduct. This is particularly evident in the context of sex trafficking. Buyers of sex, online platforms, and hotels increasingly have been caught in the anti-trafficking crosshairs and targeted with increased criminal and civil liability. In addition, prosecutors, plaintiffs, and legislators have reframed new conduct as trafficking. In some states, for example, almost all commercial sex is now sex trafficking. In other contexts, previously discrete gender-based crimes, such as domestic violence and sexual assault, are categorized as trafficking./= / \u3e/= / \u3eThis Article examines the historical and continuing expansion of trafficking definitions in the United States with a particular focus on sex trafficking. It posits that the broadening trafficking framework offers solutions to intractable problems that have bedeviled prosecutors and victim-rights advocates since 2000. However, the expansion also poses risks of its own to the rights of victims, defendants, and the continued viability of the trafficking framework. This Article argues that the next wave of reform should involve selective broadening and pruning. It cautions against an overly ambitious future expansion, arguing that it risks endangering the strength and legitimacy of the trafficking concept itself
Industry Concentration and Information Technology
Get PDFIndustry concentration has been rising in the US since 1980. Firm operating margins have also been rising. Are these signs of declining competition that call for a new antitrust policy? This paper explores the role of proprietary information technology systems (IT), which could increase industry concentration and margins by raising the productivity of top firms relative to others. Using instrumental variable estimates, this paper finds that IT system use is strongly associated with the level and growth of industry concentration and firm operating margins. The paper also finds that IT system use is associated with relatively larger establishment size and labor productivity for the top four firms in each industry. Successful IT systems appear to play a major role in the recent increases in industry concentration and in profit margins, moreso than a general decline in competition
The New Gatekeepers: Private Firms as Public Enforcers
Get PDFThe world’s largest businesses must routinely police other businesses. By public mandate, Facebook monitors app developers’ privacy safeguards, Citibank audits call centers for deceptive sales practices, and Exxon reviews offshore oil platforms’ environmental standards. Scholars have devoted significant attention to how policy makers deploy other private sector enforcers, such as certification bodies, accountants, lawyers, and other periphery “gatekeepers.” However, the literature has yet to explore the emerging regulatory conscription of large firms at the center of the economy. This Article examines the rise of the enforcer-firm through case studies of the industries that are home to the most valuable companies, in technology, banking, oil, and pharmaceuticals. Over the past two decades, administrative agencies have used legal rules, guidance documents, and court orders to mandate that private firms in these and other industries perform the duties of a public regulator. More specifically, firms must write rules in their contracts that reserve the right to inspect third parties. When they find violations, they must pressure or punish the wrongdoer. This form of governance has important intellectual and policy implications. It imposes more of a public duty on the firm, alters corporate governance, and may even reshape business organizations. It also gives resource-strapped regulators promising tools. If designed poorly, however, the enforcer-firm will create an expansive area of unaccountable authority. Any comprehensive account of the firm or regulation must give a prominent role to the administrative state’s newest gatekeepers
Core Criminal Procedure
Get PDFConstitutional criminal procedural rights are familiar to contemporary criminal law scholars and practitioners alike. But today, U.S. criminal justice may diverge substantially from its centuries-old framework when all three branches recognize only a core set of inviolable rights, implicitly or explicitly discarding others. This criminal procedural line drawing takes place when the U.S. criminal justice system engages in law enforcement cooperation with foreign criminal justice systems in order to advance criminal cases.This Article describes the two forms of this criminal procedural line drawing. The first is a “core criminal procedure” approach, rooted in fundamental rights, that arises in the exchange of electronic evidence but is related to two prior eras’ cross-sovereign criminal procedural articulation—the Warren Court incorporation of the Bill of Rights’ criminal procedural protections and engagement with international human rights instruments. Alternatively, courts today may use an ad hoc “outlier” approach, only excluding foreign evidence, convictions, or extradition requests in extreme circumstances that “shock the conscience.”This Article argues that the former approach is superior to the latter, and argues for a methodology—rooted in constitutional law, international human rights, and comparative legal functionalism—for evaluating foreign legal systems. To support this argument, this Article draws on political theory concerned with global justice. This Article concludes by considering how core criminal procedure informs U.S. engagement with international criminal tribunals and investigative mechanisms
Privacy\u27s Constitutional Moment and the Limits of Data Protection
Get PDFAmerica’s privacy bill has come due. Since the dawn of the Internet, Congress has repeatedly failed to build a robust identity for American privacy law. But now both California and the European Union have forced Congress’s hand by passing the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR). These data protection frameworks, structured around principles for Fair Information Processing called the “FIPs,” have industry and privacy advocates alike clamoring for a “U.S. GDPR.” States seemed poised to blanket the country with FIP-based laws if Congress fails to act. The United States is thus in the midst of a “constitutional moment” for privacy, in which intense public deliberation and action may bring about constitutive and structural change. And the European data protection model of the GDPR is ascendant.In this article we highlight the risks of U.S. lawmakers embracing a watered-down version of the European model as American privacy law enters its constitutional moment. European-style data protection rules have undeniable virtues, but they won’t be enough. The FIPs assume data processing is always a worthy goal, but even fairly processed data can lead to oppression and abuse. Data protection is also myopic because it ignores how industry’s appetite for data is wrecking our environment, our democracy, our attention spans, and our emotional health. Even if E.U.-style data protection were sufficient, the United States is too different from Europe to implement and enforce such a framework effectively on its European law terms. Any U.S. GDPR would in practice be what we call a “GDPR-Lite.”Our argument is simple: In the United States, a data protection model cannot do it all for privacy, though if current trends continue, we will likely entrench it as though it can. Drawing from constitutional theory and the traditions of privacy regulation in the United States, we propose instead a “comprehensive approach” to privacy that is better focused on power asymmetries, corporate structures, and a broader vision of human well-being. Settling for an American GDPR-lite would be a tragic ending to a real opportunity to tackle the critical problems of the information age. In this constitutional moment for privacy, we can and should demand more. This article offers a path forward to do just that
Floating Lungs: Forensic Science in Self-Induced Abortion Prosecutions
Get PDFPregnancy that ends in stillbirth or late miscarriage—particularly where a person gives birth outside of a hospital—raises the specter of criminal behavior. To successfully prosecute a person for the death of a child, however, requires proving that the child was born alive. Prosecutors mobilize forensic science as an objective way to determine life. This Essay focuses on one such forensic method: the hydrostatic lung test (“HLT”), also known as the floating lung test (“FLT”). Although there are debates about the “correct” way to perform the exam, in essence, the test requires that a forensic scientist take pieces of the lung and place them in water. If the lungs float, indicating a breath has been taken, scientists conclude that the baby was born alive. If the lungs sink, the infant is thought to have died in utero, thereby exculpating the accused.
The evidence that a fetus has taken at least one breath and was therefore born alive has numerous legal consequences. Depending on the jurisdiction, prosecutors can charge the woman with homicide, infanticide, neglect of a dependent, and neglect of a dependent resulting in death. Each charge carries harsh criminal penalties. Despite numerous doubts within the scientific community about the test’s veracity and growing advocacy against it, when examining cases that have used the HLT over the decades, we see that the perceived reliability of the test by adjudicators remains.
Drawing on historical research and a review of cases from the mid-1800s to the present, this Essay engages with a larger literature on forensic science and criminal law to interrogate the relationship between scientific expertise, evidence, and lawmaking in the context of self-induced abortion late in pregnancy. The Essay makes two arguments: First, it argues that adjudication is integral to the validation of forensic science and the legitimation of the HLT. In other words, courts play a key role in sustaining the belief that the HLT is a true test of whether a child was born alive. Second, this Essay argues that given the lack of scientific evidence on the HLT, it becomes necessary to turn to broader social and moral rationales for the ongoing reliance on the test. I explore two possibilities: First, as the carceral state has taken hold, forensic science offers a purportedly scientific means of furthering the project of holding individuals responsible for their behavior. Second, courts rely on the HLT as a means to respond to a moral panic about pregnancy and abortion
Desnatada: Latina Illumination of Breastfeeding, Race, and Injustice
Get PDFIn Skimmed: Breastfeeding, Race, and Injustice, Andrea Freeman brilliantly explains how racism results in lower breastfeeding rates by Black mothers,1 which in turn results in poorer health outcomes--including higher mortality rates--for Black babies.2 She provides four primary reasons for this phenomenon: (1) the history and legacy of slavery, (2) the imposition of racist gender stereotypes on Black women, (3) racially-targeted formula promotion by manufacturers and hospitals, and (4) government benefits and employment policies that obstruct poor people\u27s ability to breastfeed. The first two of these reasons are particularly devastating: the legacy of slavery and misogynoiristic3 stereotypes continue to shorten Black babies\u27 lives. This is a profound takeaway because it shows the enduring and deadly impact of slavery and anti-Black racism on the most vulnerable and precious members of society: infants, not to mention older children and adults who may experience life-long health consequences from not having been breastfed.
Well-intentioned skeptics might discount anti-Blackness and the vestiges of slavery as significant forces that drive breastfeeding disparities, which result in Black mothers who are 20% less likely to initiate breastfeeding than white mothers.4 These skeptics may think that current policies and practices which discourage breastfeeding and encourage formula feeding-along with Black mothers\u27 feeding preferences-are the only causes of this racial disparity. This is problematic because it frames the health problems and deaths of Black people that result from the failure to breastfeed as race-neutral problems. This essay seeks to augment Freeman\u27s revelation that the legacy of slavery and continued anti-Black gender stereotypes are significant driving forces behind racial disparities in breastfeeding. This is done not by comparing Black and white experiences, but by comparing Black and Latina experiences. Despite similar socioeconomic environments in terms of targeted formula promotion, medical practices, and government benefit and employment policies, as well as experiencing racial subordination, Latina mothers breastfeed at rates similar to-or even higher than-white mothers. 5 Contrasting Black and non-Black Latina breastfeeding rates lends support to Freeman\u27s arguments that slavery and contemporary racism against Black women are, in large part, to blame for lower rates of breastfeeding by Black mothers
Who’s in Charge?
No full textAs coronavirus cases continue to multiply throughout the United States, a wide range of solutions has emerged to try to measure the rate of infection and contain its damage.
For his part, President Trump has veered between science denialism and war rhetoric, glibly comparing the coronavirus to the flu or traffic accidents, or cheerily promoting unproven cures. He closed the borders to some hotspots at the end of January, but otherwise waited until March 13 to declare a national emergency. Now he embraces models predicting millions of deaths in the absence of interventions but hesitates to use the full powers of his office to force companies to produce critical medical supplies or more aggressively regulate affected industries.
By contrast, states that have been hit the hardest—New York and Washington—quickly moved from self-isolation and limited testing and care to more aggressive emergency actions. Many states and cities have followed suit. But some holdouts—such as Governor Tate Reeves, who declares “Mississippi’s never going to be China”—have defied the trend.
It’s easy to interpret these differences through the lens of bumbling unpreparedness or political partisanship, but that leaves out a crucial part of the story: the complex legal structure of U.S. emergency power and the clash of different guiding philosophies of emergency governance. It’s worth understanding these dynamics not just to see our vulnerabilities, but also to plan accordingly
Rethinking the Impact of Third-Party Funding on Access to Civil Justice
Get PDFThird-party funding indisputably puts a gold-weighted thumb on the scales of justice in favor of funded parties for two main reasons: (1) funded cases already tend to be calculable winners on the merits, and (2) third-party funders seeking a profit generally do not fund cases that are demonstrably likely to lose on the merits. Thus, we are left with both the promising potential for winners to be more likely to win with third-party funding and the alarming realization that not all winners are offered this same chance. This provokes a larger, fundamental question: If funders are picking winners among the winners, then what does real access to justice look like in an era of third-party funding? Would real access to justice need to involve third-party funders funding indigent or innocent defendants, expensive long-shot claimants, righteous injunctions with no monetary recovery, or unprofitable cases that espouse some worthy yet controversial position?
This Essay uses a thought experiment to identify areas of law and categories of parties where the promise of third-party funding may be falling short with respect to expanding access to civil justice. After outlining the thorny needles of this problem, this Essay presents a potential solution for funding longshot winners, expensive winners, defendant winners, non-financial winners, and political winners depending on the facts and circumstances of the disputes.
This Essay argues that if funders decide to fund only one additional category of parties in the name of increasing access to justice - even if such funding cuts against the funder\u27s own profit-seeking interests then civil defendants are as good a place as any to begin. Civil defendants, by definition, do not commence the litigation and, therefore, in theory, there can be no corporate influence from the third-party funder with respect to stirring up the litigation itself (i.e., maintenance, champerty, and barratry). In addition, this Essay argues that other worthy aspects of the case itself-besides financial worth may be the true foundation of access to justice that funders should espouse and support financially. This Essay concludes with a few ideas regarding how a funder might modify its algorithms and decisionmaking processes to include some of these aspects as factors to weigh in determining whether to fund the myriad categories of unfunded winners to help rebalance the scales of justice