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The Fourth Amendment in a Digital World
Get PDFFourth Amendment doctrines created in the 1970s and 1980s no longer reflect how the world works. The formal legal distinctions on which they rely—(a) private versus public space, (b) personal information versus third party data, (c) content versus non-content, and (d) domestic versus international—are failing to protect the privacy interests at stake. Simultaneously, reduced resource constraints are accelerating the loss of rights. The doctrine has yet to catch up with the world in which we live. A necessary first step for the Court is to reconsider the theoretical underpinning of the Fourth Amendment, to allow for the evolution of a more effective normative framing. Failure to do so will mean the continued retraction of Fourth Amendment protections
Criminal Justice Reform: How We Got Here, Why We Need It, and the Path Forward
No full textOn November 1, 2017, Former Deputy Attorney General and Acting Attorney General Sally Yates delivered Georgetown Law’s Philip A. Hart Memorial Lecture: “Criminal Justice Reform: How We Got Here, Why We Need It, and the Path Forward.” Prior to this appointment, President Barack Obama nominated Yates to be U.S. Attorney in the Northern District of Georgia, and was confirmed by the Senate on March 10, 2010. Yates was the first woman to hold that position in the Northern District of Georgia
Consensual Sexual Dysphoria: A Challenge for Campus Life
Get PDFThis article ultimately suggests one way to address the problem of nonconsensual sex, assault, and rape on college campuses, but it does so by focusing on a topic that our conversations about nonconsensual sex have often marginalized: harms occasioned by consensual but unwanted sex. I argue that the party who does not physically desire, does not emotionally welcome, and does not take pleasure in sex, has sometimes been harmed by that sex by virtue of its unwelcomeness, and that the harm is serious enough that we need to attend to it. Further, the harms caused by this sex are not simply psychological or emotional; they are political. I label this political harm “consensual sexual dysphoria”—the alienation and profound discomfort within one’s body caused by the sufferance of unwanted, undesired, unpleasurable and unwelcome – albeit consensual – sex that, over time, undermines one’s equality in a social and legal world that presupposes the moral as well as legal sufficiency of consent as a measure of subjective wellbeing.
I further argue that the ubiquity of consensual but unwanted sex – caused in part by the casual “transactionalization” of sex – may have contributed to the rise of all forms of sexual assault, including nonconsensual sex and rape, on college campuses as well as off. Therefore, if we want to address the causes of the spike in the number of accusations of unwanted sex, as well as simply respond with disciplinary actions when these accusations are made, we should perhaps attend to the apparent ubiquity of unwanted consensual sex: by attending to the latter, and its causes, we may actually drive down the number of assaultive sexual crimes on campus as well as off. And to address the underlying problem of consensual but unwanted sex, we need to rethink our understanding of the moral goodness of sex. Consent alone is not a sufficient condition. Instead, the moral goodness of sex requires mutual desire, mutual welcomeness, and mutual pleasure
Legal Aspects of Brexit: Implications of the United Kingdom\u27s Decision to Withdraw from the European Union
No full textMaking CLE Voluntary and Pro Bono Mandatory: A Law Faculty Test Case
Get PDFThe vast majority of attorneys in this country are required to complete 10 to 15 hours of continuing legal education (“CLE”) every year, an experience well summarized by one attendee’s observation that “[k]nowledge is good, but coerced seat time is wasteful [and] insulting.” The primary rationale for mandatory CLE is to help ensure competent client representation, but the mandatory system fails to achieve that goal. Instead, mandatory CLE has become a self-perpetuating industry that earns hundreds of millions of tuition dollars for course purveyors but demonstrates little, if any, connection to better serving the public.
By contrast, almost no attorney is required to complete a single hour of pro bono service. Although the American Bar Association (“ABA”) recognizes the “critical” need for free legal services for “persons of limited means,” attorneys simply are encouraged to volunteer their time. This voluntary pro bono system has proven to be so woefully inadequate that Justice Sonia Sotomayor recently declared her support for a “forced labor” approach to attorneys’ pro bono responsibilities.
Responding to this critical need, a current trend in the profession focuses on requiring pro bono service from law students and bar applicants—easy marks with little ability to protest. This effort, however, sidesteps the harder question of mandatory pro bono for licensed attorneys, including the law professors who may be an aspiring attorney’s first professional role models.
More than a decade ago, Dean Erwin Chemerinsky argued in favor of mandatory pro bono service for law faculty, hoping to “at least induce debate and force examination of how to better engage law professors in using their talents to help those who need it.” That debate has yet to materialize. Law professors have at least as much of an obligation as other attorneys to provide pro bono service, but their resistance to doing so has resulted in rates of participation that Professor Deborah Rhode has described as “shameful.”
This Article argues that the time is ripe to upend the status quo—to eliminate mandatory CLE and to explore replacing mandatory CLE hours with required pro bono service hours
2016: The Year of the Soda Tax
No full textThe year 2016 was pivotal in the history of the “soda wars”–the politically divisive conflict between soda as a joy of life or as a uniquely harmful food. This past year, the soft beverage industry lost its battle against soda taxes. At the beginning of 2016, only 121,000 Americans, residents of Berkeley, California, paid public health based taxes on sugary drinks. Throughout the year, six cities and counties followed suit, and when these new measures take effect, that number is predicted to grow to more than 8.3 million nationally. Evidence from early adopters shows great promise. Mexico’s 1-peso-per-liter tax produced a 6% average decline in purchases during its first year, reaching 12% by December. In Berkeley, California, consumption of sugary beverages in low-income neighborhoods decreased by 21%.
Soda taxes are an innovative method of reducing consumption of added sugars, which increase risk of obesity, type 2 diabetes, and other noncommunicable diseases. Taxes aim to discourage consumption of sugary drinks by raising prices, and offer the dual benefit of generating revenue, which can be used to fund other public health and community programs. Not surprisingly, “Big Soda” has unleashed well-coordinated, heavily resourced opposition campaigns against soda taxes, including lobbying and litigation. The successes of 2016 show that local governments can overcome industry opposition and provide leadership and innovation in tackling rising rates of obesity and noncommunicable diseases. Now, faced with an administration that has offered few (if any) reasons to be optimistic about disease prevention and health promotion at the federal level, local leaders and public health advocates should consider soda taxes as a key pillar of obesity prevention
Breaking Down Bias: Legal Mandates vs. Corporate Interests
Get PDFBias and discrimination continue to limit opportunities and outcomes for racial minorities in American institutions in the twenty-first century. The diversity rationale, touting the broad benefits of inclusion, has become widely accepted by corporate employers, courts, and universities. At the same time, many view a focus on antidiscrimination law and the threat of legal enforcement as outmoded and ineffective. Thus, many organizations talk less in terms of the mandates of laws such as the 1964 Civil Rights Act, or a “legal case,” and more in terms of a “business case” where benefits of inclusion seem to accrue to everyone. It is easy to explain the appeal of the business case for diversity: it merges the goals of racial inclusion with business profitability and corporate interests. Antidiscrimination law, by contrast, is viewed as top down and coercive. But there is one major problem: there is little-to-no evidence that the business case for diversity actually reduces bias and promotes racial inclusion.
In this Article, I present experimental research findings that for the first time test the relative efficacy of the business case rationale versus a legal case for equity and inclusion. I find that inclusion efforts grounded in antidiscrimination law, or the legal case, are the most likely to curb widely held biases and promote equitable behavior. These findings challenge emerging scholarship that suggests legal justifications for integration are no longer effective. Despite the appeal of the business case for diversity, emphasis on corporate interests actually generate negative beliefs about inclusion and more biased decision making. Civil rights law, with a deeper historical, political, and moral grounding, appears to exert a stronger normative influence. Based on these findings, this Article argues that antidiscrimination law is still needed, not only for its exogenous pressure on organizations to promote inclusion but also for its normative effect on individual values, beliefs about inequality, and behavior
Hunger, Health, and Compassion
No full textThe current hunger crisis, the largest humanitarian crisis in UN history, encompasses South Sudan, Yemen, Somalia, and northeastern Nigeria. All are experiencing severe droughts, yet the disaster’s primary drivers are armed conflicts and outright war. Health risks extend beyond starvation, including waterborne illness such as cholera. The famine’s origins and obstacles to addressing it vary in each country, though the basic storyline is shared: ineffective, unaccountable, or malevolent political leadership; violence and conflict; and a dearth of humanitarian funding.
Tillerson’s claim that the United States provides a major share of disaster assistance is true, but disingenuous. In 2016, the World Food Program fell more than 8.6 billion it required. Other countries need to step up, but so does the United States. US disaster assistance falls far short of most wealthy countries. The major donor nations contributed an average of 0.30% of their gross national income (GNI) to official development assistance in 2015. Nineteen countries provided more than the 0.17% of GNI that the United States contributed—a level less than one-fourth the long-standing 0.7% UN target.
In this article, I propose innovative strategies for humanitarian financing
Picking and Choosing Text: Lessons for Statutory Interpretation from the Philosophy of Language
Get PDFTextualists claim that they follow statutory text. This Article argues that, in practice, textualists often create meaning rather than find it. Deploying the analytics of linguistic philosophy, this Article takes a deep dive into textualist methodology. The philosophy of language reveals what legal scholarship has left submerged: The very choice of text can put the thumb on the scales of any interpretation. When one pulls a term out of a statute and isolates it from the rest of the text (what I call “isolationist” method), this decontextualization offers the opportunity for adding and subtracting meaning from the statute by “pragmatic enrichment.” Only by working out these enrichments is it possible to assess whether the hypothesized meanings are cancelled by the rest of the statute. In the end, we need to ask of all interpreters, including textualists, whether they are making rather than finding the meaning of statutes
In Praise of Richard Weisberg\u27s Intransigence
Get PDFIn early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary and legal academic world with a novel claim: Captain Vere, he argued, far from being a tragic hero resigned to the moral and legal necessity of an unpopular act, as he had been commonly understood, was a murderer. His summary execution of Billy Budd, Weisberg showed, was neither required, excused, nor justified by law. Rather, Vere engineered an unreviewable conviction and death sentence, contrary to both the letter and spirit of the governing positive law, for personal gain. But why was Weisberg’s claim so novel? Why was it that for seven decades, well over half a century, Vere’s villainy was so obscure, even to so many legally sophisticated readers?
In this article, I argue that the obscurity of Vere’s villainy resulted from the dominant legal theories developed over the past seven decades. This, in turn, explains the novelty of Weisberg’s understanding of Vere’s character: his understanding rests on a conception of law and legal meaning distinctively outside all our received jurisprudential traditions. And it suggests a much-needed corrective, not only of our understanding of Melville’s story, but also of our conventional and critical jurisprudence. It suggests the case, more specifically, for moving our conventional legal thinking away from its focus on the unjust law, and toward the duplicitous or unjust adjudicator, and for moving our critical sensibility away from its still-dominant commitments to indeterminacy, legal skepticism, and interpretive flexibility, and toward an appreciation of the virtues of legal intransigence.
In the first part of this article, I put forward an account of why it was that Richard Weisberg could see clearly what was beyond the reach to most of Billy Budd’s professional readers for the duration of the book’s life, both in law and in literature. In the second part, I turn to Weisberg’s recent defense of legal intransigence, suggesting some reasons we should attend more carefully to the case Weisberg has made for intransigence and against “flexibility” in law and jurisprudence. I then offer a couple criticisms along with a qualified endorsement of Weisberg’s brief for interpretive fidelity to positive law, informed by humane commitments to text, law, and moral rectitude