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Can You Be a Feminist and a Criminal Defense Lawyer?
Get PDFYoung people in the current cultural generation seem to like the word “literally.” They use it often and with great feeling, though not necessarily accurately. Law students will exclaim, for example, that the length of reading assignments is “literally killing them.” Young public defenders will complain that judges and prosecutors are “literally driving them crazy.” My son sometimes claims that he is “literally starving to death.” I can’t help replying to each, “Well, maybe not literally
But the answer to the question I pose in this Essay is literally self-evident, for I am both a feminist and a criminal defense lawyer. I have been both of these things for more than thirty years. So yes, of course, one can be a feminist and a criminal defense lawyer: here I am.
Moreover, I have answered this question many times in nearly everything I have written since becoming a law professor. Both my scholarly and more popular writing are from the experience and perspective of a feminist criminal defense lawyer. The fact that I am a feminist is interwoven into the way I practice criminal law and how I think about it.
It would be nice to end this project here. Pithy legal scholarship is virtually unheard of in the twenty-first century. But the question about feminism and criminal defense seems to keep coming up, lately with new urgency because of heightened awareness about sexual assault.
Consider, for example, the renewed media focus on Hillary Clinton’s representation of an alleged child rapist in Arkansas in 1975 in the lead-up to the 2016 presidential election. Commentators wondered how Clinton, who had dedicated much of her professional life to advocating for women and children, could have defended such a criminal. A meme about the case, in which Clinton is said to have “volunteered” to “free” a rapist she “knew ... was guilty” and then “laughed about it,” went viral, even though these claims were false. The truth was that Clinton was appointed to represent an indigent criminal defendant accused of child rape (though whether she volunteered or was appointed should be of no moment), litigated the case well, and obtained a favorable plea.
The Clinton kerfuffle was mere foreshadowing. A year later came the seismic cultural shift of the #MeToo movement against sexual assault and harassment. Fueled by multiple sexual abuse allegations against Hollywood producer Harvey Weinstein in 2017 and similar allegations against other celebrities soon thereafter, women who had been abused by powerful men--often in secrecy, protected by others, with the men seemingly immune from consequences-- were suddenly bringing them down. It was miraculous and empowering, and the sides were clearly drawn: either stand by your sisters at this crucial cultural moment or defend the bad guys.
Many feminists seemed to embrace the credo of the #MeToo movement: “Believe Women,” no matter what. As New Yorker writer Jane Mayer notes, now that “women’s accusations of sexual discrimination and harassment are finally being taken seriously, after years of belittlement and dismissal,” some find it “offensive” to even “subject accusers to scrutiny.” Apparently, if you are a #MeToo supporter, every allegation of sexual assault is true.
This is especially troubling in a criminal context. Even when the stakes are at their highest, not only must we stand by all women accusers, not question their accounts, and never take a man’s word over a woman’s, but apparently we must regard every purported instance of sexual abuse as equally heinous and equally worthy of the harshest criminal punishment. Hence, according to the #MeToo view embraced by many feminists, neither due process nor the principle of proportionality applies to sex cases.
In this Essay, I will not talk about the importance of defending factually innocent men criminally accused of sexual assault. This should not be controversial for anyone, feminist or not. Nor will I discuss the long and ugly history of black men being falsely accused of rape in this country, usually by white women. The vestiges of Jim Crow persist; race and rape have always been deeply intertwined in our criminal legal system and ought to be of concern to all lawyers and non-lawyers, feminist or not.
Instead, I will try to identify and address the hard questions for feminist criminal defense lawyers today, in both theory and practice. I focus on sex cases because these cases seem to provoke the most conflict for young feminists. In so doing, I first discuss the obligations of feminism in a time of over-criminalization and mass incarceration, as well as the obligations of criminal defenders in a time of heightened awareness about sexual assault and sexual violence, and how to reconcile these things. I then use two cases--the Brock Turner (Stanford swimmer case) and a more typical case not in the public eye (involving an African American man serving a lengthy sentence for rape)--in order to make more concrete how a feminist defender might think about these kinds of cases.
As I note above, this Essay is in many ways what I have been writing about my entire academic career. It is the “feminist subset” of the Cocktail Party Question: How Can You Represent Those People? It is also an exhortation to young feminists contemplating a career in criminal law to become defenders rather than prosecutors, and perhaps a little vindication for those feminist defenders who have been doing the work for years. More and more women seem to be entering law school interested in criminal defense, and many public defender offices are nearing equal numbers of men and women. I wanted to give these women defenders something that explicitly answers this question
The 2010 HMGs Ten Years Later: Where Do We Go From Here?
Get PDFIn this short article, which is part of a RIO Symposium on the Tenth Anniversary of the 2010 Merger Guidelines, we suggest a number of improvements that should be considered in the next revision of the Guidelines. Our analysis is based on the observation that horizontal merger policy has suffered from under-enforcement. We provide evidence that the enforcement agencies face significant resource constraints which require a triage process that inevitably leads to under-enforcement. In light of merger law placing greater weight on avoiding false negatives and under-deterrence than false positive and over-deterrence, the article suggests a number of ways in which the under-enforcement bias might be corrected, including (among others) rolling back the increase in the HHI “red zone” thresholds; mandating anticompetitive presumptions for mergers with high GUPPIs, acquisitions of mavericks, and acquisitions by dominant firms; closer analysis of common ownership by financial funds; and expanded analysis of potential competition mergers
Using COVID-19 to Strengthen the WHO: Promoting Health and Science Above Politics
Get PDFOn April 14, 2020, President Trump announced the suspension of funding for the World Health Organization (WHO) to investigate WHO’s handling of the COVID-19 pandemic—citing WHO’s “disastrous decision” to oppose a travel ban on China, and for being slow and “China-centric.” Certainly, China failed in its international duty to respond rapidly and transparently to the novel coronavirus, and it suppressed truthful information, propelling a localized outbreak into a pandemic now in over 210 countries. Yet close examination of WHO’s COVID-19 response reveals that the Organization acted in line with its authority under the International Health Regulations, and using the available scientific evidence. Still, WHO’s response has been constrained by its limited funding and authority, and its need to maintain diplomacy among member states.
We are facing a once-in-a-century health emergency, with WHO under attack as never before. But out of a crisis can come an historic opportunity to strengthen WHO to become the health agency the world desperately needs. What might WHO reform look like if we truly want to empower the Organization, as we should? That reform should address the structural problems that put WHO in the crossfires of geopolitical disputes and force it to appeal to countries’ political interests instead of the best scientific evidence. We propose an emboldened WHO Director-General, sustainable funding, strengthened authority to use unofficial data, and incentives for states’ compliance with global health norms
Extraterritoriality as Choice of Law
Get PDFThe proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions—which I call geographic scope limitations—as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as the governing law. The Third Restatement does not consider them to be choice-of-law rules, instead maintaining that they are indistinguishable from limitations on the statute’s internal scope, such as a provision specifying that a statute prohibiting vehicles applies only in parks. This means, according to the Third Restatement, that contractual choice-of-law clauses are presumed to select the chosen state’s law subject to their geographic scope limitations, and that the courts of other states are obligated to give effect to such limits when applying the law of the state that enacted the statute with the geographic scope limitation. Indeed, according to the Third Restatement, failure to do so would violate the obligation of U.S. states to give Full Faith and Credit to the laws of sister states.
This article defends the Second Restatement’s understanding of geographic scope limitations as choice-of-law rules. Limits on a statute’s territorial scope are fundamentally different from limits on a statute’s internal scope. When a state enacts a statute and specifies that it applies only to conduct occurring within the state’s territory, or to residents of the state, it has limited the reach of the law out of deference to the legislative authority of other states. The state does not have a different rule for conduct that occurs on the territory of other states or for persons who are not residents. The territorial scope provision tells us only that cases beyond the statute’s specified scope should be governed by the law of a different state. For this reason, such provisions are best understood as choice-of-law rules.
The Third Restatement treats geographic scope limitations as prescribing non-regulation for cases beyond the statute’s specified geographic scope. This understanding of geographic scope limitations is highly implausible and, indeed, either unconstitutionally discriminatory or unconstitutionally arbitrary. Failure to give effect to such provisions does not violate the Full Faith and Credit Clause. Rather, under the Supreme Court’s analysis in Franchise Tax Board v. Hyatt, such provisions violate the Full Faith and Credit Clause. Understood as choice-of-law rules, geographic scope limitations are binding on the courts of the enacting state, and other states may take them into account in determining whether to apply the law of the enacting state. But, if the forum’s choice-of-law rules select the law of the enacting state as the governing law, the constitutional obligation of U.S. states to respect the laws of their sister states poses no impediment to application of the statute’s substantive provisions to cases beyond the statute’s specified geographic scope
The Costs and Benefits of Affordable Housing: A Partial Solution to the Conflict of Competing Goods
Get PDFIn this Article, I extend a prior inquiry into the costs borne by society due to the lack of enough decent, affordable housing units. I previously outlined those costs and suggested a combination of public cost savings and public and private benefits that would accrue by providing that housing. I posited that the savings and benefits, in the aggregate, could at least substantially offset the costs and might even exceed them. If that is so, I queried, why has society not produced the needed units? In answering that question, I offered several possible responses: inadequate resources, racism, and public choice opposition.
In this Article, I examine the lack of resources in the context of what I have called “the conflict of competing goods.” This conflict arises when there are a variety of public goods to be obtained but insufficient resources to maximize them all. The questions then are how does society choose among them and how ought it do so? I attempt to answer these questions by reverting to a form of evaluation espoused by economists and certain politicians—Cost-Benefit Analysis (CBA).
While I do not accept CBA as the appropriate model for many types of evaluations, I use it here to support an argument that society should provide more affordable housing units. I attempt to identify the costs of the absence of such housing in relation to the benefits of providing it in an effort to enhance the other arguments—morality, equity, etc.—that underlie my own view of the problem. Thus, if the hypothesis is correct—that affordable housing can, essentially, pay for itself, the conflict of competing goods can be substantially, although not entirely, reduced
Imagining Global Health with Justice: Transformative Ideas for Health and Wellbeing While Leaving No One Behind
Get PDFThe disproportionate impact of COVID-19 on communities of color in the United States and immense vulnerabilities in lower-income countries has revealed a global health reality that is often overshadowed by decades of progress in overall global health, with new lows in child and maternal deaths every year, more people with HIV receiving access to lifesaving anti-retroviral therapy, and rising life expectancies. That reality is one of vast national and global inequalities, with the lived experiences of members of marginalized populations far removed from laudatory health headlines.
Here, we propose an ambitious agenda to bridge the gap between progress in global health and the realities of vast swaths of the world’s people. These proposals could comprise part of a new post-COVID-19 global health architecture to prepare the world for the next pandemic and protect even the poorest people in the poorest countries. We offer three ideas that, collectively, would span from international law to domestic law and policy to grassroots empowerment: a Framework Convention on Global Health, health equity programs of action, and a Right to Health Capacity Fund.
A Framework Convention on Global Health would be a global treaty based in the right to health and aimed at national and global health equity, creating a missing regime of accountability for the right to health. It would take the right to health to the next level, bringing specificity to presently vague human rights standards and providing concrete tools to achieve them. Health equity programs of action would be systemic, systematic, and inclusive approaches to address health inequities that each marginalized population experiences, across the determinants of health. And a Right to Health Capacity Fund would empower right to health advocacy and advance equity, accountability, and participation by providing grants to civil society organizations advocating for the right to health and by supporting accountability and participation mechanisms. If brought to fruition, these proposals, which would interact with and reinforce with one another, would have a transformative impact on global health, greatly reducing health inequities – leaving no one behind in health in both ordinary and extraordinary times
An Analysis of International Health Regulations Emergency Committees and Public Health Emergency of International Concern Designations
Get PDFNine public health events have been assessed for the potential declaration of a Public Health Emergency of International Concern (PHEIC). According to the World Health Organization (WHO) International Health Regulations (IHR), a PHEIC is defined as an extraordinary event that constitutes a public health risk to other states through international spread and requires a coordinated international response. The WHO Director-General convenes Emergency Committees (ECs) to provide their advice on whether an event constitutes a PHEIC. The EC rationales have been continuously criticised for being non-transparent and contradictory to the IHR. This first comprehensive analysis of EC rationale provides recommendations to increase clarity of EC decisions which will strengthen the IHR and WHO’s legitimacy in future outbreaks.
A total of 66 EC statements were reviewed from the nine public health outbreaks of influenza A, Middle East respiratory syndrome coronavirus, polio, Ebola virus disease, Zika, yellow fever and coronavirus disease-2019 (COVID-19). Statements were analysed to determine which of the three IHR criteria were noted as contributing towards the EC’s justification on whether to recommend to the WHO Director-General that a PHEIC be declared and what language was used to explain their decision.
Interpretation of the criteria were often vague and applied inconsistently. ECs often failed to describe and justify which criteria had been satisfied. Guidelines must be developed for the standardised interpretation of IHR core criteria. The ECs must clearly identify and justify which criteria have contributed to their rationale for or against PHEIC declaration. Striving for more consistency and transparency in EC justifications would benefit future deliberations and provide more understanding and support for the process
Conquest and Slavery in the Property Law Course: Notes for Teachers
Get PDFThis piece contains ideas for teaching about the foundational place of the histories of conquest and slavery to American property law and the property law course. I begin by briefly reviewing how these topics have been erased and marginalized from the study of American property law, as mentioned by casebooks in the field published from the late nineteenth century to the present. I then show how the history of conquest constituted the context in which the singular American land system and traditional theories of acquisition developed, before turning to the history of the American slave trade and the long history of resistance to Black landownership that its abolition fueled. Here, I suggest ways to correct for the tendency of traditional property law curricula to focus exclusively on English doctrines regulating relations between neighbors, rather than the unique fruits of the colonial experiment -- the land system that underpins its real estate market and its structural reliance on racial violence to produce value
Mandating COVID-19 Vaccines
Get PDFSevere acute respiratory syndrome coronavirus 2 (SARS-CoV-2) vaccines hold promise to control the pandemic, and help restore normal social and economic life. The Food and Drug Administration (FDA) has granted emergency use authorization (EUA) for 2 mRNA vaccines and will likely issue full biologics licenses in the coming months. Anticipating vaccine scarcity, the Advisory Committee on Immunization Practice (ACIP) published guidance on vaccine priorities.Data show 95% efficacy for vaccines granted an EUA, but even highly effective vaccines cannot curb the pandemic without high population coverage and maintenance of other mitigation strategies. Recent data from 1,676 adults surveyed November 30-December 8, 2020 found that when a COVID-19 vaccine is approved and widely available: 34% would get it as soon as possible; 39% would wait; 9% would only get it if required for work/school; 15% would definitely not get it. Black persons, at high risk of infection and hospitalization, are less likely to report vaccine intent with only 20% reporting they would get the vaccine soon and 52% intending to wait. Intent to vaccinate has changed substantially over time and is likely to evolve. In this JAMA Viewpoint, we examine whether vaccine mandates would be lawful and ethical, and whether they could boost vaccine uptake
The \u3cem\u3eLancet\u3c/em\u3e–O’Neill Institute/Georgetown University Commission on Global Health and Law: The Power of Law to Advance the Right to Health
Get PDFThe Lancet–O’Neill Institute/Georgetown University Commission on Global Health and Law published its report on the Legal Determinants of Health in 2019. The term ‘legal determinants of health’ draws attention to the power of law to influence upstream social and economic influences on population health. In this article, we introduce the Commission, including its background and rationale, set out its methodology, summarize its key findings and recommendations and reflect on its impact since publication. We also look to the future, making suggestions as to how the global health community can make the best use of the Commission’s momentum in relation to using law and legal tools to advance population health