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A New Baseline for Character Evidence
Get PDFPerhaps no rules of evidence are as contested as the rules governing character evidence. To ward off the danger of a fact finder\u27s mistaking evidence of character for evidence of action, the rules exclude much contextual information about the people at the center of the proceeding. This prohibition on character propensity evidence is a bedrock principle of American law. Yet despite its centrality, it is uncertain of both content and application. Contributing to this uncertainty is a definitional lacuna. Although a logical first question in thinking about character evidence is how to define it, the Federal Rules of Evidence have never offered an answer. The rules exclude character evidence offered to prove action in conformity with the character but do not specify what is meant by character.
At this fiftieth anniversary of their enactment, however, it is apparent that the Federal Rules governing character evidence and their state analogs do operate from a definitional premise. They assume a baseline figure whose attributes inform the way the rules guard against negative character propensity reasoning. The baseline most strongly resembles a middle-class, cisgender white man
Taking Tennessee Electric with a Private Vehicle Charging Market: An EV Infrastructure Policy for Conservative States
Get PDFThe transition from petroleum to electricity as a fuel source for vehicles is an essential step in the effort to stop harmful climate change. The transportation sector currently produces more carbon emissions in the United States than any other area. Recognizing this, the federal government and several states have recently devoted resources to facilitating the transition to large-scale electric vehicle (EV) use. In particular, there must be a nationwide network of EV charging infrastructure so that EV drivers can confidently drive EVs anywhere. Much of the legal research on increasing the number of EV charging facilities and consumer EV purchases focuses on states and areas where support of EVs is more likely, dismissing conservative-leaning Southeastern states, some Midwestern states, and rural areas as places where people “do not recognize climate change as a problem.” However, it is not enough to successfully prepare for and achieve mass EV adoption in liberal states. To sufficiently reduce US carbon emissions, the transition to EV use must be widespread across all states and regions, types of communities, and demographics. If environmentalists want to reduce emissions as much as possible in today’s polarized political environment, they must take a new approach to creating policy solutions. Instead of pushing large-scale, public EV projects across the board, policy makers should tailor state-level policy proposals that specifically appeal to conservative-leaning states. They should incorporate conservatives’ preferred instrument choices-—namely, private businesses-—as the drivers of EV infrastructure growth. While some environmentalists may prefer government-driven climate action, a privatized system of EV charging infrastructure will be more likely and more easily adopted by both governments and consumers in conservative states. In the context of climate change, decarbonizing the transportation sector as quickly as possible is more important than the policy tool used to do it; therefore, choosing a politically feasible policy is the best strategy.
With this approach in mind, this Note proposes specific policies that enable and support the growth of privately owned charging station businesses within the Tennessee Valley Authority (TVA) region. Using Tennessee as a case study, this Note first explains how the TVA Act and state law would grant TVA a monopoly on the EV charging market in Tennessee. It then proposes changes to state and federal law that could remove the legal barriers to privately owned charging station businesses in the TVA region. Lastly, this Note argues that allowing a private EV charging market will increase conservative Tennessee’s EV charging capabilities and encourage the purchase of EVs by Tennessee consumers
Concordance of International Regulation of Pediatric Health Research
No full textInternational, multi-site, pediatric health research has shown great promise by vastly increasing the amount and heterogeneity of biospecimens and clinical records. However, considerable impediments are created by the significant costs and delays associated with obtaining regulatory approval in numerous countries, which is often complicated by varying and sometimes opaque research ethics standards and procedures. Although it is unlikely that the global community could reach consensus on a single set of research ethics policies and procedures, voluntary policy pronouncements by countries agreeing to defer to the approval of research ethics bodies in other countries might be a way forward.
Deference is only feasible where countries have existing research ethics policies and procedures that are generally comparable, even if not identical. Unique protections for minors as vulnerable research participants date to the Declaration of Helsinki (1964) and more recently to the guiding principles of the Council for International Organizations of Medical Sciences (2016).
The Convention on the Rights of the Child, adopted by the United Nations in 1989, has been ratified by 196 nations; the US is a signatory but has not ratified it. The health and welfare of children, as expressed in “the best interests of the child,” is a primary consideration in any decision concerning them (art. 3). Also important are the right “to be heard in accordance with the age and maturity of the child” (art. 12), and the right to “the enjoyment of the highest attainable standard of health” (art. 24). No specific provision addresses biomedical research.
The influence of these international guidelines suggests that countries around the world might have adopted policies on pediatric research sufficient to support voluntary agreements to defer to research ethics review from another country. To assess the future viability of such an approach, we studied the equivalence of pediatric research ethics review in 21 diverse countries
Deplatforming
Get PDFDeplatforming in the technology sector is hotly debated, and at times may even seem unprecedented. In recent years, scholars, commentators, jurists, and lawmakers have focused on the possibility of treating social-media platforms as common carriers or public utilities, implying that the imposition of a duty to serve the public would restrict them from deplatforming individuals and content.
But, in American law, the duty to serve all comers was never absolute. In fact, the question of whether and how to deplatform-—to exclude content, individuals, or businesses from critical services—- has been commonly and regularly debated throughout American history. In the common law and the major infrastructural and utility sectors-—transportation, communications, energy, and banking-—American law has long provided rules and procedures for when and how to deplatform.
This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. Historically, the American tradition has not been one of either an absolute duty to serve or an absolute right to exclude. Rather, it has been one of reasonable deplatforming—- of balancing the duties to serve and the need to, in limited and justifiable cases, exclude. Theoretically, deplatforming raises common questions across sectors: Who deplatforms? What is deplatformed? When does deplatforming occur? What are permissible reasons for deplatforming? How should deplatforming take place? The Article uses the history of deplatforming to identify these and other questions, and to show how American law has answered them.
The history and theory of deplatforming shows that the tension between service and exclusion is an endemic issue for common carriers, utilities, and other infrastructural services—-including contemporary technology platforms. This Article considers ways in which past deplatforming practices can inform current debates over the public and private governance of technology platforms
An Epidemic in Enforceability: A Growing Need for Individual Autonomy in Health Care Data-Privacy Protection in an Era of Digital Tracking
Get PDFThe health care system in the United States is under conflicting pressures. From one angle, there is a demand for the highest standard of care, which includes efficient, confidential communications between doctors and patients. From another, however, the technology that has facilitated such efficiency has outpaced the security mechanisms currently in place to protect a long-recognized right to privacy. In an era of data tracking, the important privacy interest that Congress has recognized since 1996 confronts a growing threat of data commodification. Despite significant potential consequences, however, there is neither guaranteed statutory recovery nor cohesion among states for the process of any potential recovery under common law.
This Note proposes that a private, statutory cause of action for a violation of one’s medical privacy is the best solution to the growing problem arising out of the intersection of digital medical information and data tracking technology. Considering the realities of a medical system under demands that make an efficient return to manual data entry impossible, and digital platforms that have created an endemic of invasive oversharing, the legal system must adopt a solution in the best interest of the public. As this Note urges, there must be a federal right of action to enforce medical privacy in a sociopolitical environment where other solutions do not suffice. This solution finds support in the legislative intent and history of the existing schema, the novel risks created by recent US Supreme Court decisions combined with the inadequacy of common law approaches, and the values held in both the foundational documents of medical privacy and general ideologies of the United States
The Charter School Network (Almost) No One Wants
Get PDFPublicly funded, independently operated charter schools entered the public sector three decades ago with the promise of innovating public education to better serve students in underperforming schools. Despite limited evidence of improved educational outcomes, charter schools are now an established part of the education system, with around 7,800 charter schools serving more than seven percent of public, school students.
Although charter schools have long been associated with the controversial school choice movement, a recent entrant into the charter school arena has created new and urgent concerns. Hillsdale College, through its affiliate Barney Charter School Initiative, has been making escalating inroads into public education, capped most recently by an invitation by the Tennessee governor to establish fifty to one hundred new charter schools in the state (an increase of more than forty percent). Hillsdale is a conservative Christian college that declines federal and state funding, leaving it free from laws that prohibit discrimination by recipients of public funding. Its supporters and donors openly express that their mission is to destroy traditional public schools, and replace them with publicly funded charter schools and vouchers to be used at private schools.
Federal and state laws and policies implemented in support of charter school expansion over the three decades of charter school history provide little protection against unchecked expansion of the Hillsdale agenda. This leaves our country in the position of publicly fundinga political mission to overturn the public education system. Although charter schools are subject to the same laws governing all public schools, there is little oversight and substantial evidence of violations ranging from discrimination against students in protected classes to outright fraud. Existing recommendations to limit the number of charter schools or to hold charter schools accountable are inadequate or infeasible. Our proposal is to activate private incentives to litigate as a means of holding charter schools accountable to serving the public interest. We identify three areas in which litigation may provide an enforcement incentive for compliance with federal laws: employment discrimination liability under Title VII, liability of boards of directors of charter schools, and liability of third-party affiliates of charter schools
Sentencing in an Era of Plea Bargains
No full textThe literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95% of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors who control plea terms as the deciders of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains. After reviewing the empirical literature on sentence variation, examining state and federal plea-bargaining rules and doctrines, and conducting some empirical analysis of our own, we conclude that neither of the competing narratives is correct. Sentencing in the United States has become a dynamic process with substantial contributions from multiple actors, not a static event controlled by any single actor. Zooming in on judges\u27 contributions, we find that, contrary to much modern commentary, judges can (and do) influence plea-bargained sentences in even the most restrictive jurisdictions. Yet this judicial imprint is often obscured by formal rules that purport to exclude judges from plea negotiations. In addition, we identify a few scenarios where judges are prevented from influencing plea bargains and thus lose their traditional role as the ultimate arbiter of an individual\u27s sentence. In response to these findings, we propose a reform that would make the already prevalent judicial influence over the substance of plea agreements more transparent. In addition, we suggest a legal change that would eliminate scenarios where judges are legally authorized but practically unable to reject (unusually harsh) plea deals
The Hidden Costs Behind Cheap Clothing: Addressing Fast Fashion’s Environmental and Humanitarian Impact
Get PDFThe increasing speed at which social media trends come and go has caused fashion trends to accelerate in response to consumers’ ever-changing demands. To keep up with the latest fads, fast fashion companies design their clothing only to withstand a couple of uses before the item is no longer in good condition. The manufacture and discard of cheaply made clothing creates a variety of environmental issues. Brands conceal the treatment and compensation of their workers throughout the supply chain; the available information suggests that garment workers are mistreated. Finally, the disposal of these clothing items creates tension between the United States and the countries that ultimately assume its textile waste. The United States has done little to address these issues and currently has no legislation addressing the social and environmental decisions of the fashion industry, despite the industry’s social and environmental costs. This Note suggests that the United States enact a federal scheme to regulate the fast fashion industry by drawing on the European Union’s Strategy for Sustainable and Circular Textiles and Corporate Sustainability Reporting Directive, California’s Garment Worker Protection Act, and New York’s proposed Fashion Sustainability and Social Accountability Act
Globalize Me: Regulating Distributed Ledger Technology
Get PDFDistributed Ledger Technology (DLT)—the technology underlying cryptocurrencies—has been identified by many as a game-changer for data storage. Although DLT can solve acute problems of trust and coor- dination whenever entities (e.g., firms, traders, or even countries) rely on a shared database, it has mostly failed to reach mass adoption outside the context of cryptocurrencies.
A prime reason for this failure is the extreme state of regulation, which was largely absent for many years but is now pouring down via uncoordinated regulatory initiatives by different countries. Both of these extremes-—under-regulation and over-regulation—-are consistent with traditional concepts from law and economics. Specifically, when- ever DLT implements a “public blockchain”-—where there is no screening of who joins the network-—both the technology and its regulation constitute what economists call “non-excludable goods.” For these types of goods, two classical incentive problems emerge: (i) over-regulation, due to the “tragedy of the commons,” and (ii) under-regulation, due to the “free-rider problem.”
We argue that these problems are best solved using some form of global regulation. Comparing alternative paths to such regulation, including (i) centralized regulation, (ii) decentralized regulation, and (iii) international standards, we analyze how global regulation of DLT could be implemented using a mixture of “on-chain” (embedded in the technology itself) and “off-chain” measures.
Our Article is the first to analyze why global regulation of DLT makes sense from a law and economics perspective and is also the first to provide concrete suggestions on how to implement such regulation