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Certifying Second Chances
Get PDFPolicymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences-invisible punishments that inhibit opportunity in all facets of a person\u27s life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than 150 laws targeting collateral consequences in 2019 alone.
But what happens when these paths to second chances are littered with learning, compliance, and psychological costs? The people who most need these new opportunities may find that they are out of reach. A major problem, I argue, is the administrative burdens involved in accessing these remedies. Because of these hurdles, people with fewer resources-the population that would most benefit from the help-are the ones most likely to find these second chances out of reach. The Article closely examines one increasingly popular type of second-chance program: certificate laws that remove employment barriers.
Building on recent research identifying the low usage rates of petition-based second-chance programs, this Article catalogs and analyzes the costs and burdens placed on people attempting to access employment certificates. Of particular concern is not only these low usage rates themselves, but also the identity of those least likely to access these interventions. Second-chance programs like employment certificates that provide a way forward for people with greater resources while leaving behind those without may be more harmful than helpful when placed in the larger context of mass criminalization and social change, even if they help the small number of individuals who do access them. In contrast, a well-designed second-chance initiative that appropriately considers administrative burdens and the way that interventions like employment certificates fit into the broader picture of social change could provide short-term benefits to people with criminal records while also bolstering larger-scale reforms to the criminal legal system
The Failed Regulation of U.S. Treasury Markets
Get PDFIn trading the preeminent risk-free security, the $21 trillion U.S. Treasury market supports the country\u27s borrowing needs, financial stability, and investor appetite for a safe asset. Straddling the nexus between a securities market and a systemically essential institution, the Treasury market must function at all costs, even if other markets fail.
This Article shows that Treasury market structure is fragile, weakened by a regulatory model poorly suited to match its design. First, public oversight of Treasuries is fragmented, divided between five or more agencies. The rulebook for Treasuries is sparse, lacking basic guardrails common to other markets. Without effective rules and institutional cooperation, regulators are ill-equipped to develop a taxonomy of risks and strategies to mitigate them. Second, private self-regulation cannot fill the gap. Comprising a rival mix of heavily regulated banks and lightly regulated algorithmic firms, major Treasuries traders lack incentives to cooperate. Instead, traders are motivated to take risks where the costs of detection and discipline are low. These deficiencies leave the market vulnerable to failure and risk-taking as traders lack sufficient economic interest to maintain market integrity.
This Article concludes with two proposals to introduce stronger public and private oversight: (1) formalized coordination between regulators, led by the Financial Stability Oversight Council; and (2) mandatory clearing for Treasuries trades that forces traders to monitor each other. As the country\u27s economic lifeline, regulatory neglect of the Treasury market constitutes an exceptionally reckless administrative gamble with the potential to damage the country\u27s preeminence in global finance
Underwater Mortgages for Underwater Homes: The Elimination of Signals in the Coastal Lending Market
Get PDFClimate change and sea level rise threaten to increase the default risk of mortgages on homes in coastal areas. Faced with this reality, small coastal lenders have begun selling more climate-sensitive mortgages to Fannie Mae and Freddie Mac, thereby transferring the risk of climate-induced default off the lenders’ books. Fannie Mae and Freddie Mac play a crucial role in supporting America’s mortgage finance system by purchasing qualifying private home loans, packaging them into investable security pools, and guaranteeing timely payment of principal and interest to outside investors. Through selling mortgages to Fannie Mae and Freddie Mac, lenders can use their increased liquidity to fund additional mortgages. The effectiveness of this process, however, is dependent on Fannie Mae and Freddie Mac accepting high-quality loans that carry minimal risks of default.
This Note argues that absent some form of intervention, small coastal lenders will likely continue offloading their climate-induced default risk until Fannie Mae and Freddie Mac become so overleveraged that they can no longer ensure a functioning secondary mortgage market and taxpayers are forced to bail them out—akin to the 2008 financial crisis. Further, this Note seeks to frame such harmful lending behavior as a general market failure, and, more specifically, as a variation of the Lemons Problem. Using familiar solutions to the Lemons Problem as guideposts, this Note attempts to curtail the asymmetrical offloading of climate-sensitive loans through a mixture of public and private mechanisms aimed at improving the ability of Fannie Mae and Freddie Mac to incorporate climate risks into loan purchasing decisions
Brown, Massive Resistance, and the Lawyer\u27s View: A Nashville Story
Get PDFEditors’ Note: For nearly 75 years, the Vanderbilt Law Review has sought to publish rigorous, intellectually honest scholarship. In publishing the following Essay, we seek to provide an equally unflinching look at one way in which Vanderbilt Law School and its graduates have participated in the creation of inequities that persist today.
The Law School has produced legions of graduates committed to the pursuit of justice. Some alumni’s legacies, however, are more complicated. Brown, Massive Resistance, and the Lawyer’s View: A Nashville Story tells the story of one such alumnus. In many ways, Cecil Sims is a model of an engaged lawyer-citizen. A 1914 Vanderbilt Law School graduate, he was deeply involved in Nashville’s civil society, serving as an advisor to Vanderbilt University, Meharry Medical College, and the Davidson County Board of Education. Sims was a driving force in reopening Vanderbilt Law School after World War II-—without his efforts, the school might not even exist. Today, the Law School’s most prominent annual lecture series still bears the Sims name. Vanderbilt Law School’s history is intertwined with Sims’s story. Sims’s story, in turn, is intertwined with the racial oppression and inequality still present in Nashville today. Sims was a key architect of the city’s school desegregation plan, which, though in compliance with Brown v. Board of Education, effectively maintained racial apartheid in public schools. If Sims’s legacy includes his contributions to the Law School, so too does it encompass his role in helping to create Nashville’s still-segregated school system. An honest account of Sims’s life—and of Vanderbilt Law School’s institutional history-—requires both stories.
Cecil Sims shows us that lawyers are not merely passive participants in the legal and political systems in which we work. Lawyers are leaders, for good or for ill. Stories like that of Cecil Sims, when told honestly, help us to think critically about our own roles as students, professionals, and scholars in the legal system. As Professor Sharfstein writes, lawyers construct worlds. We share this history in the hope that we may build better ones
Envisioning the FTC as a Facilitator of Blockchain Technology Adoption in the Direct-to-Consumer Genetic Testing Industry
Get PDFSeemingly overnight, the kingpins of the direct-to-consumer genetic testing (DTC-GT) industry shifted their focus from exploring their customers’ DNA to commodifying it. Companies like Ancestry or 23andMe that were once exclusively known as mere sources of “infotainment” now regularly sell consenting customers’ genetic data to pharmaceutical researchers or use it to develop drugs of their own. To gain these customers’ consent, both firms employ a series of long, complex clickwrap contracts that largely fail to apprise their readers of the potential risks of sharing their genetic data. Nor do these agreements provide any form of compensation to those consumers whose data ultimately facilitates the development of a new, profitable drug.
Understandably, the relative autonomy major DTC-GT firms wield over their customers’ genetic information—and the manner in which that autonomy is gained—raises serious privacy and bioethical concerns. More directly, it reflects a stark lack of federal oversight of the data management and storage practices of the DTC-GT industry as a whole. The emerging patchwork of state consumer privacy laws—while certainly more robust than any existing federal legislation—likewise falls short in fully protecting the privacy and dignitary interests of the DTC-GT consumers whose genetic data is shared and mined for profit.
This is not to say that DTC-GT consumers should be uniformly prohibited from contributing their genetic data to medicinal research. Such behavior should be encouraged to the extent this information can be transferred and stored securely. Nevertheless, the current exploitation of consumer data by major DTC-GT firms may, over the long term, inhibit medicinal progress by undermining demand for genetic testing and, thus, the pool of genetic data available for research. Accordingly, consumers and researchers alike would benefit from a more secure and equitable method of exchanging genetic information.
This Note argues that the recent advent of “blockchain genomics”—a form of exchange that allows consumers to securely loan out their genetic information for research purposes in return for compensation—fits that bill. With mainstream DTC-GT firms unlikely to adopt such a system and no legislative solution on the horizon, this Note further suggests a role for the FTC, the country’s de facto privacy regulator, to nudge major DTC-GT firms in that direction by exercising various tools of its soft regulatory authority
Race Cartels: How Constructor Collaboration Is Curbing Innovation in Formula 1
Get PDFFormula 1 is in the midst of a copycat scandal: technology has made it possible for teams to reverse engineer clones of competitors’ race cars. This is a less than ideal state of affairs for the championship series, which prides itself on being the pinnacle of motorsport and automotive innovation, thanks in large part to the cars’ rapid rate of technological advancement. In order to address this problem, the Fédération Internationale de l’Automobile (FIA), Formula 1’s governing body, must increase independent innovation efforts by amending the technical regulations to restrict the extent of presently allowed inter-team collaboration. Worried that the sport was becoming a “copying championship,” the FIA adopted new measures that ban extreme reverse engineering methods. Because these new FIA regulations do not limit the degree of coordinated conduct between teams, this approach will likely fail to remedy the sport’s copying problem because team plagiarism is an anticompetitive side effect of this collusive behavior.
The FIA addresses the copying problem as one of trade secret misappropriation. By contrast, this Note approaches the issue as one of unregulated anticompetitive conduct. Analyzing the technical partnerships in Formula 1 under antitrust law elucidates their harmful effects on the racing series. This Note urges the FIA to adopt measures that limit Formula 1 teams’ ability to collaborate, before the “A-B team” phenomenon further diminishes the sport’s innovation efforts
How and Why Did It Go So Wrong?: Theranos as a Legal Ethics Case Study
Get PDFThe Theranos saga encompasses many discrete areas of law. Reporting on Theranos, most notably John Carreyrou\u27s Bad Blood, highlights the questionable ethical decisions that many of the attorneys involved made. The lessons attorneys and law students can learn from Bad Blood are highly complex. The Theranos story touches on multiple areas of professional responsibility, including competence, diligence, candor, conflicts, and liability. Thus, Theranos serves as a helpful tool to explore the limits of ethical lawyering for Professional Responsibility students. This Article discusses the author\u27s experience with using Bad Blood as an extended case study in a new course on Legal Ethics in Contemporary Practice. It begins by discussing the pedagogical justifications for including Theranos in the course and the unanticipated ways in which Bad Blood highlighted particular topics and questions. The Article then describes student reactions to using Bad Blood as a primary text to communicate ethical principles in legal practice and the strengths and weaknesses of doing so. It concludes by contextualizing the use of Theranos as a case study in the larger history of other uses of popular texts in legal education and what lessons other instructors might take from using such case studies
Supreme Court Reform and American Democracy
Get PDFIn How to Save the Supreme Court, we identified the legitimacy challenge facing the Court, traced it to a set of structural flaws, and proposed novel reforms. Little more than a year later, the conversation around Supreme Court reform has only grown louder and more urgent. In this Essay, we continue that conversation by engaging with critics of our approach. The current crisis of the Supreme Court is, we argue, inextricable from the question of the Supreme Court’s proper role in our democracy. For those interested in reform, there are three distinct strategies for ensuring the Supreme Court maintains its proper role relative to democracy: internal restraints, external constraints, and structural reforms. We argue that internal restraints and external constraints both suffer from serious drawbacks as strategies for restraining the Court. Structural reforms remain the most promising option for reforming and saving the Supreme Court
A World of Difference? Law Enforcement, Genetic Data, and the Fourth Amendment
Get PDFLaw enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment search does not occur unless police infringe expectations of privacy society is prepared to recognize as reasonable and has construed that phrase narrowly, without reference to society\u27s actual views. The empirical study presented in this Article, which attempts to gauge societal privacy expectations in this terrain, suggests that laypeople consider law enforcement access to genetic information to be as intrusive as, or more intrusive than, searches of bedrooms, text messages, or emails, not only when one\u27s DNA is held by health care providers, but also when it is obtained from direct-to-consumer genetic testing companies and public genealogy websites. Our research also suggests that the location of genetic information-rather than its nature, the purpose for which it is acquired, or the extent to which its surrender was voluntary-is the primary driver of these intrusiveness perceptions. Based on this research, we argue that both police access to non-governmental genetic databases and police use of covert methods to collect DNA in the hope of matching crime scene DNA require judicial authorization, although not necessarily a traditional warrant. More broadly, we argue that empirical data about the public\u27s privacy concerns surrounding law enforcement\u27s collection of and access to genetic data should be an integral consideration in judicial determinations of how these activities should be regulated by the Constitution
Limits of the Rule of Law: Negotiating Afghan Traditional Law in the International Civil Trials in the Czech Republic
Get PDFDrawing on ethnographic research of judicial cases in the Czech Republic which involve the law in migrants\u27 countries of origin, this Article outlines how multiple strategies handle encounters with the legal-cultural differences of Afghanistan in order to neutralize what may be called the alterity of law. The Article suggests that far from being analytical tools, concepts such as context, culture, and customary are strategically used by courts to neutralize unsettling aspects of foreign Afghan legalities. Further, it applies Leopold Pospisil\u27s ethnological concept of legal authority as a vehicle for reinterpreting the contextual differentiation of Afghan traditional law as an alternative to the standard judicial approach. Lastly, this Article suggests that the legal-cultural differences in this and similar cases can be bridged by a new concept of legal sodality, which offers an anthropologization of legal authorities\u27 distinctive manner of imagining the law of the others