University of Arkansas at Little Rock
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Employment Law—Just Let Them Handle It Amongst Themselves: An Argument in Favor of Abandoning the Application of the Lynn\u27s Food Stores Standard to FLSA Settlement Agreements
Get PDFEmployee Benefits Law—Shifting the Burden Out of Neutral: Why Burden-Shifting Is Necessary in ERISA Breach of Fiduciary Duty Claims
Get PDFFourth Amendment Privacy in Public: A Fundamental Theory with Application to Location Tracking
Get PDFWhen we walk out our front door, we are in public and other people may look at us. But intuitively, we don’t open ourselves up to unlimited scrutiny just by going outside. We retain some privacy, even in public. What is the source of this residual public-privacy, and how should the law recognize it without degrading the open character of public space?
The answer given by commentators, and most recently by the Supreme Court in Carpenter v. U.S., comes in the form of two related claims. The first is the chilling theory of the Fourth Amendment. According to this idea, the Fourth Amendment protects the exercise of First Amendments rights against the suppressive effects of government observation. The second is the mosaic theory of a search. According to this idea, a citizen suffers a Fourth Amendment search when the government amasses information about her from which it can infer her First Amendment activities, broadly understood.
I argue that both claims are flawed, and that their replacements should be sought from what I call the participatory theory of privacy. According to this theory, privacy, and so the Fourth Amendment search clause, fundamentally (but not exclusively) protects against being misjudged for the experiments in living that one performs by, inter alia, thinking, talking with trusted others, and seeing the world for oneself. A consequence of this theory is that a person’s movements are not private only because they reveal other private information, but rather because they are themselves private. This result provides a stronger and narrower rationale for the Carpenter decision rooted in freedom of movement. It also provides a theoretical framework for addressing a variety of surveillance methods, including historical location tracking, real-time location tracking, and “geofencing.
Roadmap for Anti-Racism: First Unwind the War on Drugs Now
Get PDFThe War on Drugs (WOD) transmogrified into a war on communities of color early in its history, and its impact has devastated communities of color first and foremost. People of color disproportionately suffer incarceration in the WOD even though people of color use illegal narcotics at substantially lower rates than white Americans. As a result, the WOD led to mass incarceration of people of color at many times the rate of white Americans. Indeed, as a stark illustration of the power of race in America, even after Illinois and Colorado legalized cannabis, over-policing in communities of color resulted in a substantial increase in arrests of people of color while white youth arrests declined. Thus, when police brutality against communities of color exploded into the consciousness of America in 2020, it vindicated many voices suggesting a close link to the WOD and its implicit targeting of people of color.
The WOD devolved into a literal decades-long military style offensive played out on the streets of urban and poor communities of color throughout the United States, replete with battering rams, tanks, helicopters, grenades, and SWAT tactical teams killing, maiming, and imprisoning primarily people of color. By 2020, when the durability of racial oppression exploded into the open in the United States with the killings of George Floyd and Breonna Taylor (among others), the costs of this particular mechanism of the replication of the nation’s racial hierarchy became vividly clear. This Article catalogues the costs of the WOD to communities of color across America. It then uses that reckoning to fashion a legal means for ending the WOD and repairing the human and economic carnage it has inflicted on our nation.
Across the political spectrum a range of voices now recognize that the WOD failed to achieve its goals and inflicted massive costs worldwide. In fact, mainstream economics now recognizes that “[i]t is time to end the ‘war on drugs’ . . . [which] has produced enormous negative outcomes and collateral damage.” These enormous costs include: negative health outcomes from lack of treatment, mass incarceration of people of color in particular, failing to interdict supplies, corruption of police forces and the rule of law, fostering illicit markets with accompanying violence, human rights abuses, significant macroeconomic costs to the entire nation, trillions in wasted government expenditures, and failing to secure the supply of important medicines. Within each category of costs, injuries fall disproportionately upon communities of color, which necessarily suffer rom senseless destruction of human capital and productivity, to the great detriment of families and local economies. Ending the nightmare of drug prohibition and mass incarceration will require the diversion of resources now committed to the WOD to investments in those very same communities—and this Article shows the abundance of such resources
What It Takes: A Statistical Analysis of Arkansas Supreme Court’s Petition for Review Process
Get PDFDonative Hot-Powers Cases Under the Uniform Power of Attorney Act
Get PDFAmong its significant reforms, the Uniform Power of Attorney Act (UPOAA) denies agents nine types of power unless “the power of attorney expressly grants” them. Those so-called “hot powers” relate to delegations of fiduciary authority and to donative transfers of the principal’s property for less than full consideration. The donative hot powers include creating, amending, or terminating a trust; making gifts; creating or changing beneficiary designations; creating or changing rights of survivorship; and waiving or disclaiming property interests. The rationale for requiring the grant of specific authority is the risk those acts pose to the principal’s property and estate plan.
Although the UPOAA was approved fifteen years ago and thereafter adopted by about thirty U.S. jurisdictions, only a dozen or so judicial opinions address the donative hot powers, and some of them are “unpublished.” Consequently, while “uniformity of application and construction” is a goal of the UPOAA, the number and availability of authorities construing and applying the donative hot-powers provisions is limited.
Within those judicial opinions dealing with donative hot powers, only the power to “make a gift” meaningfully has been considered. Regarding other donative hot powers, most notable is a failure of courts to recognize that transfers they have permitted agents to make required express authority that did not appear to exist. This Article analyzes fourteen donative hot-powers decisions
The Racist Roots of the War on Drugs and the Myth of Equal Protection for People of Color
Get PDFBy 2021, the costs and pain arising from the propagation of the American racial hierarchy reached such heights that calls for anti-racism and criminal justice reform dramatically expanded. The brutal murder of George Floyd by the Minneapolis police vividly proved that the social construction of race in America directly conflicted with supposed American values of equal protection under law and notions of basic justice. The racially-driven War on Drugs (WOD) fuels much of the dissonance between American legal mythology—such as the non-discrimination principle and the impartial administration of the rule of law—and the reality of race in the United States. Mass incarceration of people of color pursuant to the War on Drugs betrays any semblance of equal protection under law. Yet, the Supreme Court stubbornly clings to notions of equal protection and animus that operate primarily to protect powerful white Americans, and to leave laws such as the Controlled Substances Act intact and fully operational, notwithstanding the fact that under that Act people of color suffer grossly disproportionate incarceration relative to whites who are more frequent users of illicit drugs.
This Article shows that the War on Drugs originated with animus against people of color: specifically, with the intent to demonize people of color and to propagate fear within the entire American body politic while assuring disproportionate punishment towards communities of color. The WOD continues to this day to consume human potential and inflict disproportionate suffering on communities of color despite wide-ranging evidence of its racist origins and racist impact. As such, the Fifth Amendment’s equal protection guarantee should operate to invalidate the Controlled Substances Act and liberate all victims of the racist WOD. Only then will the promise of the rule of law and equal protection under law achieve vindication as uniquely American innovations for genuine social justice and human development under law
Trauma: Community of Color Exposure to the Criminal Justice System as an Adverse Childhood Experience
Get PDFThe reality that traumatic childhood experiences are directly linked to negative health outcomes has been known and widely recognized in public health and clinical literature for more than two decades. Adverse Childhood Experiences (“ACEs”) represent the “single greatest unaddressed public health threat facing our nation today” according to Dr. Robert Block, former President of the American Academy of Pediatrics.
ACEs are traumatic events that occur in early childhood, which can range from abuse and neglect to experiences derived from household and community dysfunction, such as losing a caregiver, being incarcerated, or living with a household member suffering from mental illness. The prevailing framework for addressing the ACEs crisis has been a medical model focused on after-the-fact interventions for individual survivors, rather than a model targeted at upstream, systemic issues that directly contribute to the trauma that individuals, families, and communities collectively suffer. More recently, literature has begun to explore the connection between trauma and race, outlining how structural violence, generational poverty, and historical trauma is often suffered both at the individual and community levels, focusing particularly on the traumas of violence and discrimination experienced by Black, indigenous, and persons of color. Such work has largely focused on improving economic opportunities for trauma-stricken communities, improving the physical/built environment, and supporting the development of healthy social-cultural environments.
Largely absent from the body of work on the causes and impact of childhood trauma, however, is the exploration of how the United States justice system is at the epicenter of the current childhood trauma crisis. Each childhood experience described in screening instruments, which were used over the years to identify trauma, has a direct and undeniable nexus to the justice system. This nexus is evident for the abuse survivor seeking to escape her abuser through an order of protection; for the divorcing parents in a bitter custody battle; for children who land in the foster care system when their parents are incapacitated by substance abuse disorders; for those who end up with criminal justice involvement for nonviolent offenses involving mere possession of drugs; and for the Black men and women who are sentenced to longer and more harsh sentences than their white counterparts at rates that are grossly disproportionate to the racial make-up of the overall population as well as the incidence of criminal behavior among all races.
Before now there has been no concerted effort to examine the role that our criminal justice system plays in actively visiting harm on children and youth of color, who experience traumatic interactions with law enforcement officers and the judiciary at alarming rates significantly greater than those experienced by non-minority children and youth. If we as a society are committed to treating ACEs as the public health crisis that they represent, then it is incumbent upon our legal system to examine where and how it is complicit in perpetuating trauma upon children of color. Additionally, the legal system must address how it should intervene—both at the individual and structural levels—to eliminate practices that are contributing to multi-generational cycles of trauma. The legal system must affirmatively equip those with justice-system involvement to succeed and build the individual and community resilience necessary to heal those who have been stricken by system induced trauma and its life-long negative consequences.
Our country is facing a racial reckoning, with the highly publicized extrajudicial police killings of countless Black men, women, and children. This reckoning underscores how policing and the criminal justice system routinely traumatize both the subjects of the direct encounter and children who witness and experience these killings who may be left fatherless or motherless as a result of a deadly encounter or subsequent incarceration. The Black community is further re-traumatized by the constant barrage of news accounts, now often accompanied by horrific video footage. Indeed, it is the responsibility of our justice system, as a major contributor to so called “social determinants of health,” to tackle this crisis directly. This piece purports to begin this intervention, starting with a focus on the criminal justice system
