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Cuing Safety in the Law School Classroom: Using a Polyvagal Theory Framework in Support of Trauma-Informed Teaching Practices
No full textThe past few decades have seen a welcomed focus on “Trauma-informed education.” This focus is often traced back to the 1997 Adverse Childhood Experiences study, which identified many significant negative outcomes that resulted from childhood trauma.1 While the original study focused on outcomes such as chronic health problems, incarceration, and employment challenges, later researchers focused on the negative impacts on education and learning as a result of trauma.2 Educators continue to work with this research trying to figure out how to be more “trauma-informed,” and to better reach those students whose lives and learning capacity have been affected by Trauma. This work usually begins with an exploration classroom and curricular adaptations designed to avoid retraumatizing students. Unfortunately, it often ends there. Researchers don’t usually take what we see as the next step. They don’t usually explore the psychological and physiological changes caused by trauma, and the negative effects these changes have on the capacity to learn. And they do not suggest possible steps to address those negative effects. We aim to do this here by first digging into the ways in which trauma affects the brain, through a larger discussion of the application of Steven Porges’ “Polyvagal theory”3 to education. And we will conclude by suggesting concrete steps you can take to address the negative effects of trauma in the classroom
Changes in revenues associated with antimicrobial reimbursement reforms in Germany
Get PDFPolicy declarations from the G7 and other high-level meetings call for increased incentives for antimicrobial research and development (R&D). Governments fund push incentives like CARB-X and GARDP, and G7 countries are now designing pull incentives—financial rewards given to manufacturers post-market authorization that are intended to encourage the creation and introduction of novel antimicrobials. Germany has declared previously at the G7 that it has developed a pull incentive that will increase revenues from sales of important new antimicrobials, principally by exempting them from some aspects of health technology benefit assessments and reference pricing, which should result in higher prices. This policy move is the latest in a series of reforms that aim to improve the marketability of antimicrobials in Germany. This paper examines Germany’s reforms and contributes to the ongoing debate about the merits of its approach in light of R&D and access issues impacting the country, particularly in comparison to pull incentives such as revenue guarantees or subscriptions that delink revenue from sales volume. We find that in order for Germany to produce the same impact on antimicrobial revenues as a delinked pull incentive, it either needs to increase the volume of antimicrobials used or increase prices for these drugs by as much as 3.3-times current values
A Reasonable And Well-Reasoned Teaching Tool In Unreasonable Times
Get PDFDevon Carbado’s most recent book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, is a must-read for anyone studying or concerned with criminal procedure or policing. Unlike some of Professor Carbado’s other work, the brilliance of this book is not necessarily new conceptualizations or theorizations—for which he is well known—but rather centers on accessible pedagogy. If you have studied race and policing, you are not likely to find a new case, study, or reference to scholarship in the book. But, you are going to understand anti-Black racism, policing, the Fourth Amendment, and their intersections better than you did before. You will also benefit from the key sources being skillfully assembled and connected. If you are new to race and policing, you will get up to speed thoroughly and quickly through an easy read—which is no easy feat when writing about complex constitutional law and sensitive issues of structural racism for a general audience who may have a diversity of ideological leanings. This book is an approachable, engaging, one-stop read for the subject
The Second Amendment’s Second Sex
No full textThis Essay explores how the Supreme Court’s Second Amendment doctrine perpetuates gender hierarchies and a male monopoly on lethal self-defense. It critiques the narrow “true man” framing that ignores women’s experiences and advocates for a justice-centered framework that incorporates power and privilege into the gun-rights discourse
Chevron Deference Is Dead, Long Live Deference
Get PDFThe demise of Chevron deference standing alone may turn out to be much less important for the future of administrative law and agency regulation than many believe. The Court explicitly approved of deference under the Skidmore factors, which instruct reviewing courts to “resort for guidance, even on legal questions” to “the interpretations and opinions of the relevant agency, made in pursuance of official duty and based upon specialized experience.”8 Further, the Court had already created numerous limitations to the reach of Chevron deference and, as the Court noted, it had not deferred under Chevron in nearly a decade. Chevron deference was already a rather weak doctrine, even in some lower federal courts. More fundamentally, many of the cases in which the government could have argued for Chevron deference pre–Loper Bright will now be decided under the relatively deferential APA standards of review such as arbitrary, capricious, and substantial evidence. Thus, agency action will continue to receive deference on judicial review. In any event, whether Chevron was the deciding factor in many or even any important cases is doubtful. In numerous instances, the Supreme Court and other courts overturned agency statutory constructions even while Chevron was good law.
While the demise of Chevron itself may have little material effect on federal regulatory power, those who believe that robust federal regulation is important for advancing and preserving social welfare may still have cause for concern. Loper Bright sends out anti-regulatory signals, and its effects may interact with other recent anti-regulatory Court decisions. The ascension of the major questions doctrine,9 the Court’s narrow reading of agency authority over “waters of the United States,”10 its allowance of challenges to administrative rules even decades after they were finalized,11 and its recognition of a right to a trial by jury in some agency civil enforcement actions12 could all significantly reduce the scope of agency power.13 For those skeptical of the social value of federal regulation, Loper Bright is cause for optimism. That is especially true if Justice Neil Gorsuch’s concurring opinion—aimed at weakening the role of precedent in judicial decisionmaking—signals that the Court is willing to revisit additional fundamental pro-regulatory administrative law doctrines
How to Talk About Race Without Reproducing Racism; A Conversation with Dr. Deadric Williams
No full textCopyright Fiduciaries: Problems and Solutions
Get PDFAndrew Gilden & Eva E. Subotnik, Copyright’s Capacity Gap, 57 U.C. Davis L. Rev. __ (forthcoming, 2023), available at SSRN (Aug. 9, 2023).
In this forthcoming article, Andrew Gilden and Eva Subotnik begin an important conversation about an underexplored area of copyright law. Their focus is copyright law’s inconsistent treatment of mental capacity. Under copyright law, copyright authors can produce valuable copyrighted work but those same authors may lack the legal capacity to make decisions about if, when, or how to exploit that work. For example, children and people with mental illness or disability can be copyright authors, but they cannot license that work (or refuse to license it) without a legally competent surrogate. The authors explain that this inconsistency leads to injustices for which they offer reforms
Toward a Liberal Common Good Constitutionalism for Polarized Times
Get PDFIn Common Good Constitutionalism, Adrian Vermeule urges his fellow conservatives to change the way they think about the American Constitution. Instead of maintaining a constitutionalism that emphasizes aggregating popular preferences, limiting government, and securing individual rights, he promotes a constitutionalism that emphasizes the common good and cultivates the attitudes and competences requisite to its pursuit. For the common good constitutionalist, a government is established primarily to do good things for people. It envisions an active government, including a strong president, a strong administrative state, and judges exercising reasoned judgment about which results would contribute to the general welfare, correctly understood, not necessarily as understood by the American founders.
In this article, we argue that Vermeule’s version of common good constitutionalism is a species of positive constitutionalism, and these two types of constitutionalism are neither new nor inconsistent with American traditions. Both the Declaration of Independence and the Constitution’s preamble assume a government dedicated chiefly to public purposes. The version of antiliberal common good constitutionalism offered by Vermeule, however, is not appropriate to our circumstances of moral pluralism, and would not be acceptable to our morally and politically diverse and divided people.
We begin with two points on which we agree with Vermeule: the necessity for a “moral reading” of the U.S. Constitution rather than an originalist reading and a positive constitutionalism instead of a view of the Constitution as simply a charter of negative liberties. We then raise several concerns about Vermeule’s disruptive project: (1) the historical role of appeals to natural law and divine law in justifying sex and race inequality, including in family law, marriage, and civil society; (2) Vermeule’s caricatured depiction of what he calls “progressive constitutionalism” and his emphatic rejection of autonomy as a basis for Due Process liberty; and (3) the seeming absence of the role of deliberation by the people about the common good and of appreciation of reasonable moral pluralism in his conception of common good constitutionalism. We close by sketching an alternative liberal common good constitutionalism for our morally pluralistic and politically polarized people
Originalism, Official History, and Perspectives versus Methodologies
Get PDFThis paper addresses a well-worn topic: originalism, the theory that judges should interpret the Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, another effect of originalism that I identify is the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law. I argue that originalism is closer to a perspective than a methodolog
Song for Senior Send-Off, to the Tune of Charlie on the MTA
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