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Unwinding “Law And Order”: How Second Look Mechanisms Resist Mass Incarceration and Increase Justice
Get PDFFor decades, the United States has used incarceration to achieve a particularized version of safety. Amidst the civil rights movement, presidential candidate Barry Goldwater wielded the phrase “law and order” against the masses of Black men, women, and children in their fight for equitable treatment. This came at a time when “[i]t was no longer socially permissible for polite White people to say they opposed equal rights for Black Americans. Instead, they began ‘talking about the urban uprisings’” and “attaching [those] to street crime, to ordinary lawlessness[.]” The result was a decades-long, persistent campaign to maintain order by arresting and incarcerating communities of color and people experiencing poverty
A Critical Jeffersonian Mind for a Community Reinvestment Bind
Get PDFThe Community Reinvestment Act of 1977 ( CRA ) primarily sought to remedy decades of government sanctioned disinvestment in so-called “redlined communities.” Through the Home Owners’ Loan Corporation and later the Federal Housing Administration, the United States of America created from whole cloth a structure that encouraged and subsidized the explosion of homeownership in white American households. Following decades of racialized wealth generation, the United States had a change of heart. Congress determined that financiers needed a gentle push to invest fairly. Additionally, Congress wanted one thing clear in the drafting of this remedy—it must not allocate credit.
This essay considers how a different pedagogical approach in law schools could better equip legal thinkers to address racial economic harms. Coupling critical legal studies with a Jeffersonian approach to legal education would foster more ambitious remedies. Those remedies would be better informed regarding the power structures and human costs at play. A Critical Jeffersonian mind would be poised to not only know what the law is, but prepared to determine what the law should be. Using the CRA as an example, the essay provides a glimpse into how to better tackle historical harms
Nefarious Notarios: Responding to Immigration Scams as White Collar Crime as a Matter of Public Policy
Get PDFImmigration scams targeting non-citizens can have devastating impacts on an individual\u27s status and ability to remain in the United States legally. The phenomenon of notario fraud occurs when an individual misrepresents themself as a notario publico in an effort to defraud immigrants seeking legal services. In Spanish-speaking countries, a notario publico is a highly trained legal professional, akin to an attorney, who provides legal advice and drafts legal documents. The term is a false cognate. The English equivalent, a notary, is an individual with narrow witnessing duties and much less discretion. Problems arise when individuals obtain a notary public license in the United States and use that license to substantiate representations that they are a notario publico to immigrant populations that ascribe a vastly different meaning to the term
A Contractual Relationship with Environmental Justice
Get PDFWhile corporations have long grappled with environmental issues, environmental justice is different. Corporations regularly manage compliance with environmental permits over a polluting facility’s long lifespan. Justice issues, however, are a fast-growing space for corporations as they wrestle with employee, government, customer, and public demands to step up for the communities that are directly impacted by the pollution their facilities produce. This Article explores the relationship between corporate polluters and impacted communities, with a focus on private-ordering tools like contracts. Such a focus enriches environmental justice law’s traditional focus on government decisionmakers, moving instead to corporate decision-making about where, how, and what kinds of polluting facilities impact communities. Scholars have long recognized “community benefit agreements” and “good neighbor agreements” as contractual mechanisms that can drive forward corporate decision-making on polluting facilities in specific environmental justice communities. Yet, they also rightly raise concerns that these agreements suffer from problems of unequal bargaining power, negotiation implementation costs, and unenforceable terms. This Article asserts that environmental nonprofit organizations are in the best position to meet corporate counsel at the contract drafting table. Environmental nonprofit organizations have environmental technical expertise, access to large grant/philanthropic funding, an ability to provide pro bono legal representation to communities, and a governance structure that allows for mission-oriented work. In short, this Article calls on environmental nonprofit organizations to develop environmental justice transactional practice groups to supplement their public-law administrative focus with private ordering tools
Examining Patent Eligibility
Get PDFA firestorm of debate has surrounded the Supreme Court of the United States’s 2014 decision Alice Corp. Pty. Ltd. v. CLS Bank International on the doctrine of patentable subject matter eligibility under 35 U.S.C. § 101. As the Court’s leading articulation of doctrine, which generally excludes from patenting abstract ideas, laws of nature, and natural phenomena, Alice has been criticized as unpredictably vague and overly constrictive of patentability, with the effect of “decimating” patents, innovation, technological investment, and even the United States’ competitiveness against other nations. To support these criticisms and calls for reform, scholars and practitioners have frequently turned to empirical analysis of patent examination data showing major changes to patent examination outcomes after Alice, to argue that the decision had dramatic and negative consequences in its immediate wake. These criticisms and empirical analyses are influencing policy: Senator Thom Tillis introduced legislation amending § 101 on June 22, 2023.
Viewing Alice in isolation, its effects seem obvious: increases in rejections under § 101 and decreases in granted patents in fields such as computer software that the decision directly addressed. Yet context matters, and the relevant context here—the development of patent eligibility law before the 2014 decision—has gone largely unstudied. Indeed, at least some commentators assume that the pre-Alice period was a relatively peaceful time for subject matter eligibility with little doctrinal development other than the Supreme Court’s interventions.
In this Article, I challenge the failure to consider this context in understanding the impact of Alice, and consequently challenge the assumption that Alice was a major and unprecedented change at all. Instead, I posit a novel alternate account of § 101’s development, in which the key turning point was a little-noticed 2011 Federal Circuit decision called Ultramercial, LLC v. Hulu, LLC (“Ultramercial I”). That case revived an archaic and controversial doctrine of software patent eligibility that spawned a wave of patents particularly directed to methods of doing business. Alice, three years later, is better understood as a correction of this erroneous appellate decision and a restoration of pre-2011 eligibility law—hardly the revolution that Alice has been made out to be
The Purcell Principle and the Antiblackness of Constitutional Fundamentalism
Get PDFIn Milligan v. Merrill, a district court in Alabama found that the state legislature designed Alabama’s new congressional district map in a way that diminished Black political power, and ordered the legislature to redraw its map to remedy the violation. Two weeks later, the Supreme Court stayed the district court’s order, allowing Alabama’s congressional elections to proceed under the discriminatory maps. The only stated rationale, offered by Justices Kavanaugh and Alito in a concurring opinion, was the so-called Purcell principle – the notion that federal courts should not enjoin a state’s election laws in the period close to an election. While the opinion discussed the state’s hardship at length, it failed to discuss the hardship to Black voters at all. This dominant reading of Purcell advances the core ideological investment of constitutional fundamentalism whereby Black citizens are stripped of rights, made to exist in the body politic as unrepresented subjects, and then dispossessed in the name of the public interest
Impact of Extreme Hindutva Ideology on Freedom of Speech in India
Get PDFIn the last decade, India has seen a rise of extreme far-right nationalism often referred to as the “Hindutva movement.” While the movement existed even before India obtained its independence in 1947, it recently gained unprecedented popularity and support among Indian citizens and non-resident Indians. Among the factors responsible for the Hindutva movement’s current popularity is blatant support and affiliation from the ruling political party, the Bharatiya Janta Party (BJP). The BJP has been a leading endorser of the Hindutva ideology, bringing it back to the center stage of Indian politics.1 The rise and spread of the ideology and its resulting policies and discourse changes violate the human rights of many people in India, including but not limited to, individuals belonging to non-Hindu minorities
The WTO as a forum for regulatory cooperation: Transparency and open plurilateral agreements
Get PDFhttps://digitalcommons.wcl.american.edu/facsch_bk_contributions/1421/thumbnail.jp
[quote] Ron Rivera and Another Blow to Coaching Diversity in the NFL
No full textN. Jeremi Duru understands their thinking.
A professor of sports law at American University, Duru authored the definitive book on the creation of the Rooney Rule, Advancing The Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL. Among the nation’s foremost experts on the NFL’s hiring practices, Duru said there is precedent for concern.
“Historically, in all different walks of life in this country, it been the case that people of color have been viewed monolithically,” Duru said in a phone interview this week. “Consequently, if you have one person who fails to rise to a certain standard or surmount a certain bar, presumptions are developed that, well, nobody of that group — people of color, Black people — are gonna be able to do that. That definitely is a dynamic. And it’s not just in sport. It’s throughout society.
Financial Regulation & Emerging Technology with Hilary Allen
No full textFinancial technology is changing rapidly—and Washington College of Law (@AUWCL) professor Hilary Allen is helping regulation keep up. Her research informs policymakers about how to mitigate risks and safeguard against financial crises. “I try to impact the policy that is made at the regulatory level and the congressional level to ensure that we have a deck that isn’t stacked against people when it comes to new financial technology.