3320 research outputs found
Sort by
Who Owns the Skies? Ad Coelum, Property Rights, and State Sovereignty
Get PDFIn light of the history of the doctrine of ad coelum, as well as the states’ preeminent role (secured by the Tenth Amendment) in regulating property and airspace up to the 500-foot level, it is remarkable that the federal government has begun to claim that it controls everything above the blades of grass. This chapter challenges those statements, demonstrating that history and law establish that property owners, and the states, control the airspace adjacent to the land
From Parchment to Dust: The Case for Constitutional Skepticism (Introduction)
Get PDFThis is the introduction to a new book entitled From Parchment to Dust: The Case for Constitutional Skepticism. The introduction sets out a preliminary case for constitutional skepticism and outlines the arguments contained in the rest of the book
Maximizing #MeToo: Intersectionality & the Movement
Get PDFAlthough women of color experience high rates of harassment and assault, the #MeToo movement has largely left them on the margins in terms of (1) the online conversation, (2) the traditional social movement activity occurring offline, and (3) the consequential legal activity. This Article analyzes how race shapes experiences of harassment and how seemingly positive legal strides continue to fail women of color thirty years beyond Kimberlé Crenshaw’s initial framing of intersectionality theory. I discuss the weaknesses of the reform efforts and argue for more tailored strategies that take into account the ineffectiveness of our current Title VII framework and, more specifically, the continuing failure of the law to properly deal with intersectionality. This analysis and the resulting proposal demonstrate how advocates can leverage #MeToo as an opportunity to reshape law, organizations, and culture in a way that better protects all women, and particularly women of color
Co-creating a Legal Check-up in a School-based Health Center Serving Low-income Adolescents
Get PDFThe Problem: Marginalized populations experience health-harming legal needs—barriers to good health that require legal advocacy to overcome. Medical–legal partnerships (MLPs) embed lawyers into the healthcare team to resolve these issues, but identifying patients with health-harming legal needs is complex, and screening practices vary across MLPs.
Purpose of Article: Academic and community partners who collaborate in an MLP at a school-based health center (SBHC) share their process of co-creating a two-stage legal check-up for adolescents.
Key Points: Screening adolescents for health-harming legal needs is challenging. It took ongoing collaboration to refine the process to fit the needs of adolescents and meet the partners’ goals.
Conclusion: Social determinants of health play a significant role in health disparities, and there is a need for innovative solutions to screen and address these in vulnerable populations. Other partners can learn from our experiences to co-create their own approach to addressing health-harming legal needs
The Evolution and Jurisprudence of the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review
Get PDFThe past eight years have witnessed an explosion in the number of publicly-available opinions and orders issued by the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. From only six opinions in the public domain 1978–2012, by early 2021, eighty-eight opinions had been released. The sharp departure is even more pronounced in relation to orders: from only one order declassified during 1978–2012, since 2013, 288 have been formally released. These documents highlight how the courts’s roles have evolved since 2004 and reveal four key areas that dominate the courts’ jurisprudence: its position as a specialized, Article III court; the effort to understand the existing statutory language in light of new and emerging technologies; the tension among constitutional rights, the need for information, and the implications of increasingly broad surveillance programs; and the courts’s growing role in conducting oversight and having to respond to Executive Branch errors, noncompliance, and misrepresentations. This Article details these tensions in light of the courts’ jurisprudence, noting the areas where we are likely to continue to see concerns in the implementation of the Foreign Intelligence Surveillance Act going forward
Trademarks as Surveillance Transparency
Get PDFWe know very little about the technologies that watch us. From cell site simulators to predictive policing algorithms, the lack of transparency around surveillance technologies makes it difficult for the public to engage in meaningful oversight. Legal scholars have critiqued various corporate and law enforcement justifications for surveillance opacity, including contract and intellectual property law. But the public needs a free, public, and easily accessible source of information about corporate technologies that might be used to watch us. To date, the literature has overlooked a free, extensive, and easily accessible source of information about surveillance technologies hidden in plain sight: federal trademark filings.This Essay examines the powerful and unexplored role of trademark law in exercising oversight within and beyond surveillance. Trademark law promotes access to information, and the federal trademark application process—long overlooked by scholars—demands extensive public disclosures that reveal a wealth of information about surveillance technologies. This Essay leverages examples from real trademark applications to explore how journalists, researchers, and civil society can use the detailed disclosures in trademark applications for transparency. I conclude that trademark law can be a powerful tool for correcting longstanding information asymmetries between the watchers and the watched by empowering the public to watch back
A Taxonomy of Police Technology’s Racial Inequity Problems
Get PDFOver the past several years, increased awareness of racial inequity in policing, combined with increased scrutiny of police technologies, have sparked concerns that new technologies may aggravate inequity in policing. To help address these concerns, some advocates and scholars have proposed requiring police agencies to seek and obtain legislative approval before adopting a new technology, or requiring the completion of “algorithmic impact assessments” to evaluate new tools.
In order for policymakers, police agencies, or scholars to evaluate whether and how particular technologies may aggravate existing inequities, however, the problem must be more clearly defined. Some scholars have explored inequity in depth as it relates to specific police technologies. But to date, none have provided an explanation of how police technology aggravates inequity that can be applied across all technologies—including future technologies we have not yet encountered.
This Article fills that gap. It offers a proposed new taxonomy that parses the ways in which police technology may aggravate inequity as five distinct problems: police technology may (1) replicate inequity in policing, (2) mask inequity in policing, (3) transfer inequity from elsewhere to policing, (4) exacerbate inequitable policing harms, and/or (5) compromise oversight of inequity in policing.
Naming and defining these problems will help police agencies, policymakers, and scholars alike analyze proposed new police technologies through an equity lens and craft policies that respond appropriately. This framework should be built into evaluations of police tools performed in accordance with Community Control Over Police Surveillance (“CCOPS”) ordinances being passed in a growing number of cities. To assist with these practical applications of the taxonomy, this Article also offers a model equity impact assessment for proposed police technologies, and explains why the time is ripe for introduction of such an assessment. Finally, this Article explains how the proposed taxonomy and impact assessment tool can be used to evaluate new technologies through an equity lens in contexts beyond the criminal legal system. As policymakers consider requiring algorithmic impact assessments in other domains, they can draw on the framework provided in this Article for one possible model
How to build more equitable vaccine distribution technology
Get PDFThe COVID-19 pandemic and the distribution of vaccines that promise to bring it to an end have spotlighted inequities in our nation’s healthcare system. But the vaccine distribution problem illustrates a peculiar fact of our digital era: just how hard it is to ensure equitable delivery of services via the internet. This is especially the case when distributing a scarce critical resource as quickly as possible on a massive scale.
In this Brookings Institution article, Professors Laura Moy and Yael Cannon argue that digital infrastructure is a critical determinant of health, and call for the restructuring of online vaccine appointment systems to ensure health equity
Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy
Get PDFIt has been more than 30 years since Kimberlé Crenshaw published her pathbreaking article critiquing the inadequacy of antidiscrimination law in addressing claims at the intersection of race and sex discrimination. This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. The new status quo has not resolved the problems that she documented, and has introduced a set of second generation intersectionality issues. Most significantly, many courts now recognize that Black women experience discrimination differently than do white women or Black men. Yet, despite the professionally and psychologically disabling consequences of such discrimination, judges have failed to develop a new analytic paradigm for addressing intersectional claims under Title VII. Likewise, Congress has failed to offer a legislative solution, and the Equal Employment Opportunity Commission provides scant guidance for employees, employers, and attorneys attempting to navigate these claims. Even the recent flurry of #MeToo-inspired state legislative reforms miss the opportunity to address this persistent problem. Despite vocal resistance to Critical Race Theory, the ongoing metoo movement and increased receptiveness to address systemic racism following the mass protests in 2020, make this an opportune time to renew our discussion of intersectionality and reshape the meager analytical framework of antidiscrimination law. This Article lays the foundation for future research and second generation law and policy proposals that will take crucial steps towards finally acknowledging and addressing the real discrimination Black women face
Citizens, Suspects, and Enemies: Examining Police Militarization
Get PDFConcern about the increasing militarization of police has grown in recent years. Much of this concern focuses on the material aspects of militarization: the greater use of military equipment and tactics by police officers. While this development deserves attention, a subtler form of militarization operates on the cultural level. Here, police adopt an adversarial stance toward minority communities, whose members are regarded as presumptive objects of suspicion. The combination of material and cultural militarization in turn has a potential symbolic dimension. It can communicate that members of minority communities are threats to society, just as military enemies are threats to the United States. This conception of racial and ethnic minorities treats them as outside the social contract rather than as fellow citizens. It also conceives of the role of police and the military as comparable, thus blurring in a disturbing way the distinction between law enforcement and national security operations