3320 research outputs found
Sort by
Riding to the Rescue: The Conditional Spending and Commandeering Jurisprudence of Sandra Day O’Connor in an Era of Federal Overreach
Get PDFThe Social Psychology of Inclusion: How Diversity Framing Shapes Outcomes for Racial-Ethnic Minorities
Get PDFResearch on the efficacy of organizational diversity efforts has yielded mixed results. It remains unclear when positive or negative outcomes should be expected, and why. This article fills a gap in the sociological literature by examining critical social psychological mechanisms. In Experiment 1, I found that common diversity messaging led to increased bias towards racial minorities. In Experiment 2, I examined how alternative framing may influence these outcomes. Findings revealed that the common “business case” emphasizing profit and performance gains made decision-makers less likely to select a Black job candidate than emphasizing civil rights law. I then examined social psychological mechanisms that make civil rights framing more effective. Discussing civil rights promoted the belief that striving for diversity is morally “the right thing to do,” which mediated the promotion of a Black job candidate. Beyond theoretical contributions, findings can help organizational leaders better understand the effects of alternative diversity strategies
The US Supreme Court’s Rulings on Large Business and Health Care Worker Vaccine Mandates: Ramifications for the COVID-19 Response and the Future of Federal Public Health Protection
Get PDFOn January 13, 2022, the Supreme Court issued 2 landmark rulings on the federal government’s power to mandate COVID-19 vaccinations. The Court curtailed the government’s ability to respond to the pandemic and may have also severely limited the authority of federal agencies to issue health and safety regulations.
In National Federation of Independent Business v Department of Labor, the Court blocked an Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) requiring vaccination, subject to religious or disability accommodations, or weekly testing and masking in businesses with 100 or more employees. In Biden v Missouri, the Court upheld a Centers for Medicare & Medicaid Services (CMS) regulation mandating health worker vaccinations, subject to the same accommodations. What do these decisions reveal about the future of federal protection of public health and safety
America’s Racial Stain: The Taint Argument and the Limits of Constitutional Law and Rhetoric
Get PDFHow should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advantage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change?
Questions raised by this problem do not lend themselves to definitive answers, and this essay does not offer them. Instead, I suggest a variety of responses that attempt to grapple with the difficulty. I also offer tentative assessments of whether they can do so successfully. Least promising, I argue, are responses grounded in constitutional law understood as judicial parsing of constitutional text and precedent. This social practice is too deeply mired in a pernicious history, set of conventions, and restraints to pull itself out of its own muck.
Political redemption offers more promise. Tactics used outside the courthouse that invoke the vaguer, higher ideals supposedly implicit in constitutional text and that reimagine and reconstruct our history in a more favorable light might provide a foundation for renewal. But the effective use of these tactics requires extraordinary political and rhetorical skill that no one on the current scene has yet demonstrated. Perhaps more importantly, it also requires a willingness of Americans, also yet to be demonstrated, to follow such a leader toward racial reconciliation
Deep-State Constitutionalism
Get PDFIn this review, I explain how Common Good Constitutionalism taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law as it is at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his own conception of the common good, preferring instead merely to assert it without considering other serious alternatives.
To make his case against originalism, Vermeule adopts the approach of Ronald Dworkin, which Dworkin formulated before the development of modern originalist theory. This leads Vermeule to seriously mischaracterize modern originalism, which enables him to dismiss a straw man version of it. And yet, in defending himself from the charge that his is just a version of living constitutionalism, Vermeule adopts the fundamental tenets of modern originalism: fixation and constraint. Like living constitutionalists who are arm chair originalists, however, Vermeule then asserts without showing that the fixed original meaning of the text of the Constitution is so abstract and thin that it permits the direct pursuit of the common good by the government actors unconstrained by the text of the Constitution.
Surprisingly, the government actors Vermeule thinks are most well suited to pursue the common good and implement the natural law are those who work in the federal administrative state. To these bureaucrats he would have the judiciary largely defer--oddly except for environmental regulations where he would allow public interest lawsuits to protect the environment. Vermeule provides absolutely no reason to believe that his version of the public good--assuming it is correct--will actually be adopted and served by the administrative state.
Throughout Common Good Constitutionalism, Vermeule fails to confront the strongest versions of the positions he opposes, especially when it comes to originalism. But this book is not really a scholarly project. In my review, I situate it in the current political context to show how Common Good Constitutionalism is largely a work of constitutional polemics, which some social conservatives are finding appealing. But there is very little that is conservative--socially or otherwise--about Adrian Vermeule\u27s commitment to the unfettered regulation of Americans by the deep state
Felony Financial Disenfranchisement
Get PDFIndividuals with prior felony convictions often must complete all terms of their sentence before they regain voter eligibility. Many jurisdictions include legal-financial obligations (LFOs) — fines, fees, and/or restitution stemming from convictions — in the terms of the sentence. Twenty-eight states, governing over 182 million Americans, either directly or indirectly tie LFO repayment to voting privileges, a practice we call felony financial disenfranchisement.Proponents of felony financial disenfranchisement posit that returning citizens must satisfy the financial obligations stemming from convictions to restore themselves as community equals. Moralism aside, others claim low rates of electoral participation among those with felony convictions imply such disenfranchisement is inconsequential.In this Article, we challenge both of these claims. To do so, we draw upon new empirical and contextual evidence from Florida, which disenfranchises more returning citizens than any other state. We rely on data and natural experiments from a non-partisan, non-profit advocacy group that we launched called Free Our Vote.The Article illustrates how felony financial disenfranchisement creates uncertainty around voter eligibility, which likely deters many otherwise qualified voters with felony records from participating. We also measure, for the first time, the direct impact of felony financial disenfranchisement on voter participation, using a debt relief program implemented by Free Our Vote. Specifically, we compare electoral participation between registered voters whose LFOs were eliminated by Free Our Vote against virtually identical debtors who did not benefit from our program. We find our debt relief program increased voter turnout by approximately 26% among this group during the 2020 election.The contextual and empirical evidence we present unequivocally demonstrates that narratives in favor of felony financial disenfranchisement are misguided. Failure to pay criminal court debt typically arises from bureaucratic complications and opacity as well as indigency. Ethics-oriented arguments thus grossly misconstrue the challenges returning citizens face. Likewise, the purported benefits of induced criminal court revenue from LFOs are overstated. Given the countervailing costs tied to criminal debt, and its disparate impact on indigent and Black defendants, we conclude that felony financial disenfranchisement is on balance a socially harmful policy that should be eliminated
Risk Tradeoffs and Equitable Decision-Making in the COVID-19 Pandemic
Get PDFSince the start of the Covid-19 pandemic, societies have faced agonizing decisions about whether to close schools, shutter businesses, delay nonemergency health care, restrict travel, and authorize the use of emergency Covid-19 countermeasures under limited scientific understanding. Measures to control the spread of COVID-19 have disrupted our health, educational, and economic systems, tarnished our mental health, and took away our cherished time with family and friends. Conflicting advice from health agencies on the utility of public health measures left us wondering, was it all worth it? We still do not have all the answers to guide us through difficult risk-risk tradeoff decisions during a health emergency.
When both action and inaction can result in significant harm and irreversible damage, decisions surrounding infection control measures become complicated, and there is no single correct answer. Yet ethics can help us think about hard trade-offs that weigh competing values and have deep consequences for society and particularly the most disadvantaged.
This essay discusses the challenges of making policy trade-offs amid scientific uncertainty. While there may be no perfect formula for deciding what to do and when, we propose four key considerations for assessing risk-risk trade-offs, involving effectiveness, less-restrictive means, harm identification and amelioration, and equitable distribution. We then and apply those four considerations to the areas of education, economies, health care, travel and migration, social engagement, and medical countermeasures, examining governments’ response to the COVID-19 pandemic, and assessing how responses to the next major outbreak can be improved
Copyright Protection for Works in the Language of Life
Get PDFIn 2001, the DNA Copyright Institute sought to capitalize on the fear of human cloning by offering celebrities the opportunity to use copyright to secure exclusive rights in their DNA. At the time, a Copyright Office spokesperson pointed out that a person’s DNA “is not an original work of authorship.” That statement is no longer self-evident. A scientist claims to have used CRISPR technology to create a pair of twin girls with human-altered DNA that may provide immunity to HIV infection and improved cognitive function. Through gene therapy, doctors can “author” changes to patients’ DNA to cure disease. Scientists “edit” bacterial cell DNA to produce medicines and industrial enzymes. Researchers have “written” original DNA encoding a GIF of a running horse. Does copyright grant exclusive rights to these creations?
For decades, scholars have argued that DNA sequences, like computer programs, are copyrightable “works” encompassed by the Copyright Act’s definition of “literary works.” So far, the Copyright Office is unconvinced and continues to list DNA sequences and compounds as “works” that do not constitute copyrightable subject matter. This Article takes a new approach by proposing that DNA is not a “work” at all. Rather, DNA is a medium in which information is stored. In the words of the Copyright Act, DNA compounds are “copies” in which an original copyrightable work or a functional creation may be fixed. Under this framework, literature is entitled to copyright protection whether it exists as a copy printed on paper or encoded into DNA. Genetic DNA, which functions as a component of cellular machinery to produce useful chemicals, is entitled to no more copyright protection than any other machine component. Rejecting this approach and continuing to treat DNA as a “work” rather than a “copy” has real world consequences. The recent history of copyright protection for computer programs provides a cautionary tale. Mischaracterizing DNA in the way that computer programs have been mischaracterized — as a type of “work” under the Copyright Act — could lead to the extension of exclusive copyrights to the functional DNA in living organisms in the same way that copyright protection has been extended to some functional aspects of computer programs
Resisting Face Surveillance with Copyright Law
Get PDFFace surveillance is animated by deep-rooted demographic and deployment biases that endanger marginalized communities and threaten the privacy of all. But current approaches have not prevented its adoption by law enforcement. Some companies have offered voluntary moratoria on selling the technology, leaving many others to fill in the gaps. Legislators have enacted regulatory oversight at the state and city levels, but a federal ban remains elusive. Both approaches require vast shifts in practical and political will, each with drawbacks. While we wait, face surveillance persists. This Article suggests a new possibility: face surveillance is fueled by unauthorized copies and reproductions of photographs, and resisting face surveillance compels us to consider countering it with copyright law.
So why haven\u27t face surveillance companies been overwhelmed with copyright infringement litigation? Fair use. This Article lays out the litigation landscape before analyzing the recent Supreme Court decision in Google v. Oracle, alongside other key fair use cases, to examine why this complex doctrine may permit many uses of machine learning without allowing face surveillance to copy and reproduce online profile pictures. Some face surveillance companies claim to be transformative search engines, but their business models are more like private subscription services that are rarely found to be fair use. And scraping profile pictures harms the unique licensing market for these photographs, which grows as companies and researchers increasingly reject scraped photos as sources of face analysis training data. This Article concludes that copyright law could curtail face surveillance without waiting for companies or Congress to catch up--and we ought to use it
Teaching Doctrine for Justice Readiness
Get PDFClinics strive to teach students lawyering skills. But clinics should also teach students how to use those skills to confront injustice and promote justice, an approach Jane Aiken refers to as “justice readiness.” Casework for clients presents many opportunities for students to become justice ready, but not all matters do so equally. Clinics come with built-in limitations. Some matters involve injustices in one area of law while leaving others untouched. And others don’t require creative advocacy for justice. Casework remains a powerful driver of justice readiness, but it cannot do the job alone.
Teaching students doctrine through a social justice lens can bridge the justice readiness gap. This Essay introduces two new pedagogical approaches cultivated within Georgetown’s new Intellectual Property and Information Policy Clinic that do just that: Doctrine x Social Justice and Deep Dives. Doctrine x Social Justice uses cutting-edge social justice case studies that illustrate themes of injustice and creatively explore lawyers’ bending the law toward justice to teach underlying doctrine in nine substantive areas of intellectual property law and information policy, setting students up to observe themes of (in)justice within the field. And Deep Dives empower students to create their own Doctrine x Social Justice sessions by using current issues of law and policy to explore underlying doctrine. Together, these approaches provide a fresh way of teaching doctrine for justice readiness