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Episode 70: Professor Jessica Silbey
No full textProfessor Jessica Silbey stops by Supreme Myths to discuss the latest term and the relationship between Intellectual Property law and our fundamental values as well as how film reflects who we are or maybe who we are going to be
Toward Evidence-Based Antiracist Policymaking: Problems and Proposals for Better Racial Data Collection and Reporting
Get PDFThe study of data concerning racial and ethnic inequities and disparities allows us to better understand experiences of racism, and to see more clearly how and where racism manifests. Studying the effects of racism, in turn, allows us to more easily identify racist policies, so that we can craft antiracist interventions.
Existing race and ethnicity data collection efforts are riddled with gaps and errors, including missing and incomplete data, insufficiently disaggregated data, lack of meaningful longitudinal data, infrequently updated data, non-standardized methodologies, and other problems. These deficiencies significantly hinder evidence-based antiracist policymaking.
This policy report examines the state of racial and ethnic demographic data collection and reporting in the U.S., and offers policy recommendations to improve such systems. In particular, this report demonstrates the need for a standardized and nation-wide system of racial data collection and reporting.
This report is based on the experiences of two teams of researchers that collected racial and ethnic data between March 2020 and August 2021: The COVID Racial Data Tracker (CRDT) and the Racial Data Tracker (RDT). The CRDT, a collaboration between The Atlantic’s COVID Tracking Project and the BU Center for Antiracist Research (the Center), was the first public database containing racial demographic data about COVID-19 cases, hospitalizations, and deaths across the U.S. The RDT, a Center initiative, collects racial and ethnic data in several other policy areas, including houselessness, criminal arrests, and police violence. The CRDT and RDT teams’ experiences, described in this Report, demonstrate the current challenges of obtaining racial and ethnic data across different jurisdictions, levels of government, and policy areas, and offer critical insight as to how to reform racial and ethnic data collection and reporting practices in the U.S
Recovering Feminist Lessons From the Past For a Less Carceral Future
Get PDFIn a moment when mass incarceration, police reform, and abolition are dominating national headlines, Aya Gruber’s book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, takes on one of the most complicated questions of the politics of policing and incarceration: gender violence. Her book provides a history of the uncomfortable relationship between the carceral state and feminist organizing to end violence against women. And, it offers a path forward that begins to address mistakes of the past by reigniting those modes of feminism focused on poverty, welfare, and race that were sidelined with the rise of what is now called “carceral feminism.
Constructing Basic Liberties: A Response to Eight Comments
No full textI am enormously grateful to Jack Balkin for hosting this symposium on my new book, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022) and to the contributors for commenting on it. In this brief response, I cannot possibly do justice to all of the thoughtful criticisms they make. Instead, I will address some of the most salient and recurring issues they raise. My primary aim will be to make clarifications where these careful readers have shown the need to do so. I will take up the comments in the order in which they were posted
The Public/Private Distinction in Public Health: The Case of COVID-19
Get PDFIn this Essay, we argue that the paradigm of the public/private distinction is implicitly operating as a primary frame in the public health response to the pandemic. The public/private distinction is particularly evident in the guidance around masking and other risk-mitigation policies and advice issued by public health agencies. This public health approach reifies the notion of the home as an exceptional private space that exists outside of the possibility of COVID-19 transmission, obscuring the reality of the high risk of transmission in some households. 8 We argue that the manifestation of the public/private distinction in the COVID-19 response is deeply raced and classed as it ignores the high risks borne by essential workers, who are disproportionately lower-income workers of color, and their families. The reality is that many essential workers could not follow the primary advice offered over the course of the pandemic to stay at home and thus bore disproportionate risk of contracting COVID-19 in the workplace and exposing family members at home.
The rest of this Essay is organized as follows. Part I describes how the primary public health response of stay-at-home orders was organized around a sharp differentiation between risk of transmission in the public sphere versus risk of transmission in the private domain of the home. Part II elaborates the logic and history of the public/private distinction and the role it has played in structuring the governance of modern society. Part III shows how the public/private distinction has shaped the approach to understanding the household in neoclassical political economy and traces the way those ideas have had an imprint on public health law and policy. In Part IV, we move beyond the public/private distinction by turning our attention to commonsense public health policy measures that would contribute to decreased risk of COVID-19 transmission in the home, such as Dr. Collins\u27s masking advice. Highlighting the simplicity of these responses not only offers pragmatic tips, but also serves to highlight how entrenched the public/private distinction has been in the response. Without this divide, these responses could have-and should have-been prioritized. This Essay then concludes with a brief discussion of the theoretical and policy implications of the preceding analysis
Why Money Is Well Spent on Time
Get PDFThere are a few reasons why incentivizing clinicians to spend more time with patients can improve health outcomes. Doing so affords clinicians time to assess social determinants’ influences on their patients’ health experiences; offers opportunities to identify and respond to patients’ loneliness; and helps motivate patients’ trust in health care, strengthen patient-clinician relationships, and bolster patients’ adherence to clinicians’ recommendations
Overcoming the Peremptory\u27s Greatest Challenge
Get PDFFour decades after the Supreme Judicial Court ( SJC ) first proscribed certain group-based peremptory challenges, eradicating unlawful discrimination in jury selection has gained renewed interest. Yet so long as Massachusetts retains the inherently flawed three-step Batson-Soares test, lawyers seeking to exclude jurors for impermissible reasons will proceed virtually undeterred.
The solution is not to abolish peremptory challenges, as Arizona did in 2022. When exercised lawfully, they enable litigants to remove jurors they legitimately perceive as biased where a challenge for cause, due to its narrow scope, legally cannot. Eliminating peremptories would provide the parties little opportunity to influence who decides the case, yielding that power to the one person with no stake in the verdict and who before trial is unaware of the precise evidence, arguments, and jurors\u27 reactions thereto that will follow.
Nor is the answer in a criminal case to strip prosecutors of peremptories, a notion even Justice Thurgood Marshall-the Supreme Court\u27s most outspoken critic of peremptories-rejected. There is no more justice in permitting a defense attorney to discriminate against individuals because of their race, ethnicity, gender, or sexual orientation than in allowing a prosecutor to do the same. Furthermore, as the Supreme Court noted in Gera v. McCollum, 505 U.S. 42 (1992, just as a conviction tainted by discriminatory jury selection erodes society\u27s faith in the system, its confidence is undermined where a defendant, assisted by [group-based] discriminatory peremptory strikes, obtains an acquittal. Attorneys on both sides of the aisle have an equal responsibility to eradicate, not perpetuate, unlawful discrimination.
Instead, the key to curbing discriminatory peremptory challenges is to root out those motivated by implicit, not merely explicit, bias by compelling attorneys to justify them with immediate explanations, and to overhaul the means by which trial and appellate judges evaluate their legitimacy
Subject Matter Jurisdiction: The Interests of Power and the Power of Interests
No full textJurisdiction is power. Subject matter jurisdiction provides the source of courts’ power to adjudicate disputes and thereby establish precedent for posterity. In the United States, federal and state courts share this power unevenly. The limited nature of federal courts’ subject matter jurisdiction rests on theoretical assumptions about the superiority of the federal judiciary— namely, that federal courts offer a superior degree of neutrality, expertise, and uniformity than state courts do. This superiority premise often is invoked to justify the authorization or denial of federal subject matter jurisdiction, based on value judgments about which kinds of disputes deserve the option of adjudication in the superior system
Paths to Downstream Innovation
Get PDFAll innovation is downstream innovation - research that builds on prior discoveries. Patent law has an outsized influence on downstream innovation because such innovation often falls within the scope of an in-force upstream patent. In these cases, innovators cannot conduct even the most basic research towards downstream technologies without addressing the upstream patent. Because upstream patents block downstream research, and it is often impractical to license the upstream patent, downstream researchers frequently exploit a group of doctrines that permit research to proceed even in the presence of an otherwise blocking patent.
This Article presents the first systematic review of the paths to downstream research. These paths - avenues by which downstream research can proceed without permission of the upstream patentee - have accumulated haphazardly over the years, often accidentally through legal doctrines intended to apply to other situations. As a whole, they exert a powerful influence on the direction of downstream innovation by exempting certain projects, people, and institutions from patent infringement. However, they do so in ways that are unplanned and not always beneficial. Paths to downstream research therefore shift the course of scientific development - for example, favoring foreign research over domestic research, computer modelling over physical testing, and research on new methods of using products over research on new methods of making products.
This Article makes two contributions to patent policy. First, it advocates for fixing incentives for downstream research with a broad research exception. Second, an array of policy efforts are founded on the assumption that upstream patents block downstream research. By arguing that patents do not block downstream research - they shift it - this Article re-sets the baseline for these policies. Beyond policy, this Article provides new theoretical perspectives on the interactions between patents and research, which undergirds much scholarship on innovation in both law and economics
Discredited Data
Get PDFJurisdictions are increasingly employing pretrial algorithms as a solution to the racial and socioeconomic inequities in the bail system. But in practice, pretrial algorithms have reproduced the very inequities they were intended to correct. Scholars have diagnosed this problem as the biased data problem: pretrial algorithms generate racially and socioeconomically biased predictions, because they are constructed and trained with biased data./= / \u3e/= / \u3eThis Article contends that biased data is not the sole cause of algorithmic discrimination. Another reason pretrial algorithms produce biased results is that they are exclusively built and trained with data from carceral knowledge sources – the police, pretrial services agencies, and the court system. Redressing this problem will require a paradigmatic shift away from carceral knowledge sources toward non-carceral knowledge sources. This Article explores knowledge produced by communities most impacted by the criminal legal system (“community knowledge sources”) as one category of non-carceral knowledge sources worth utilizing. Though data derived from community knowledge sources have traditionally been discredited and excluded in the construction of pretrial algorithms, tapping into them offers a path toward developing algorithms that have the potential to produce racially and socioeconomically just outcomes