Alabama Law Scholarly Commons - The University of Alabama
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On the Scales of Private Law: Nano Contracts
Full text linkContracts are falling in scale. New contracting trends and technologies facilitate the formation of smaller scale contracts that have ephemeral duration, token stakes, and narrow scope. These nano contracts embody ephemeral interactions of minuscule value -interactions that were previously far outside the law and away from explicit markets, governed only by social norms.
The rise of nano contracts can unlock new transaction types, create opportunities to build wealth, and reduce dependence on private ownership. Yet nano contracts also carry important risks, and their small scale makes them difficult to effectively regulate. At the limit, nano contracts collapse private law boundaries between property, torts, and contract, and would require a rethinking of the basic private law categories. This Article offers the first comprehensive study of these Lilliputian agreements, examining their potential while attending to questions of enforceability, market creep, and disparate impact. The analysis reveals the essential, if neglected, role of scale in private law, and how it can and should inform jurisprudence and policy
Noncitizen Harboring and the Freedom of Association
Full text linkThe United States has long criminalized assistance to unauthorized migrants. It is a crime to smuggle, transport, harbor, or encourage unauthorized migrants to remain in the country, regardless of the reasons for such aid. In response to recent federal harboring prosecutions of humanitarians assisting migrants at the U.S.- Mexico border, scholars and advocates have shown tremendous interest in a defense to liability under the Religious Freedom Restoration Act and the First Amendment\u27s Free Speech Clause. But a comparative analysis of harboring law reveals that some foreign jurisdictions conceptualize harboring law and defenses to liability in terms of citizen-migrant associations rather than religious freedom or freedom of speech.
This Article argues that conceptualizing harboring law in the United States in terms of the freedom of association, like these foreign jurisdictions, would pay off in three ways: First, it would improve the descriptive accuracy of the stakes in harboring prosecutions; providing water, food, and shelter to other people amounts to association more clearly than it does an expression of religious belief or a political view. Second, it would provide an opportunity to rework aspects of associationajlu risprudence by potentially extending the category of protected intimate associations to include activities of care outside of the family. Finally, focusing on association brings the relationships between citizens and migrants to the fore, which in turn stands to improve the visibility and stature of migrants in the law
Supply-Side Health Policy: The Impact of Scope-of-Practice Laws on Mortality
No full textThe increased use of nurse practitioners (NPs) and physician assistants/associates (PAs) to provide healthcare represents an important supply-side policy option to expand access to care. However, restrictive scope-of-practice laws limit their ability to deliver care. I examine the effect of relaxing these scope-of-practice laws on healthcare amenable deaths, which are sensitive to access to care. Analyzing deaths in the United States between 2005 and 2019, I find that relaxing NP scope-of-practice laws reduces healthcare amenable deaths by 12 per 100,000 individuals and that relaxing PA scope-of-practice laws reduces these deaths by 10 per 100,000, with larger reductions in rural areas
Defamation with Bayesian Audiences
Full text linkHow strictly should the law regulate false defamatory statements? We first show that the presence of judicial errors often puts defamation law on a Laffer curve: regulation that is too lax or too strict is inferior to moderate regulation. While moderate regulation is ideal, it is not always attainable because of practical and legal constraints. With these constraints, we consider a Bayesian audience that takes the strictness of defamation law into account when evaluating statements. The optimal standard is then taxer than is prescribed by standard models with naive audiences. These findings underscore the importance of accounting for audience effects in analyzing defamation law
From Cannabis to Crypto: Federal Reserve Discretion in Payments
Full text linkFrom its inception, the Federal Reserve has operated payment systems that let banks move money for their customers. Checks, wire transfers, and electronic consumer payments all happen thanks to the Federal Reserve. Congress by statute specified which banks get access to the Fed\u27s payment services. For more than a century, the Federal Reserve provided services to all legally eligible banks. But when the Federal Reserve received requests for payments access from a cannabis-focused credit union and a cryptocurrency custody bank (both of whom are legally eligible), it denied them. The Fed also issued sweeping guidelines claiming discretion to conduct risk vetting and deny bank requests. These guidelines apply to all banks and reverberate far beyond cannabis and crypto.
This Article examines whether the Federal Reserve\u27s payments discretion is as great as it now claims, a question that has been raised in five recent cases but never answered. It concludes the Fed has overstepped. The language and structure of the Federal Reserve Act require that the Federal Reserve provide payment services to all eligible banks. In support of this statutory interpretation, the Article excavates long forgotten legislative history and more than a century of sometimes hidden Federal Reserve payments practices. It shows that although the Federal Reserve has some discretion over the payments it processes and terms under which it offers it payments services, the Fed\u27s discretion is not so broad that it can deny access to legally eligible banks. If the Fed wants to exclude banks, it should ask Congress to change the law
Crying Wolf: Neo-Patriots, Critical Race Theory, and the Constitutional Protection of Dangerous Ideas
Full text linkMost Americans do not realize that, notwithstanding the First Amendment\u27s free speech guarantee, for most of our nation\u27s history, judges sent men and women to prison for expressing ideas considered too dangerous. It was not until the late 1960s that the Supreme Court rejected the clear and present danger doctrine, insisting that statutes banning speech must draw a distinction between advocacy of ideas and advocacy of imminent lawless action. The Court held that under that constitutional norm, the government could not send a Klansman to prison for expressing racist, anti-Semitic, or otherwise dangerous or offensive ideas. Since then, banning the advocacy of ideas has been presumptively unconstitutional.
In recent months, however, a number of state and federal measures have aimed to ban discussion of so-called divisive concepts, including Critical Race Theory ( CRT ) in public schools and workplaces. Others target books, such as The 1619 Project, or the use of selected curricular materialsf rom groups,f or example, like the Southern Poverty Law Center\u27s Learning for Justice Project. Still others target anti-racist diversity, equity, and inclusion trainings for government employees. Such materials and trainings have been declared anti-American, dangerous, hateful, or even racist by neo-patriots, persons in and outside government who seek to use the law to ban the expression of ideas they find objectionable. Remarkably, without any discussion of core First Amendment doctrine, what CRT is, or what critical race theorists have written, governments have once again responded to public pressure and declared some ideas and materials too dangerous and sought to punish some speakers.
Recalling similar periods of viewpoint censorship during the last century, this essay examines the constitutional implications of bans on CRT, The 1619 Project, and other materials, and provides a constitutional roadmap for challenging such bans on First and Fourteenth Amendment grounds
The Public Voice of the Defender,
Full text linkFor decades, police and prosecutors have controlled the public narrative about criminal law. The news landscape features salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets. Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about the overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations-all of which inflict severe harm on defendants and their loved ones. But defenders rarely show the public the world they inhabit.
That approach hasn\u27t stopped the carceral state from ballooning over the past fifty years; public defense budgets remain paltry, and clients suffer from too much law and too little justice in a system that disregards and dehumanizes them. This Article encourages defenders to go on the offensive, to seek transformative change toward a more just legal system. It builds on social media literature to and analyzes how defenders can strategically use social networking sites to add their expertise to ongoing public debates about crime and criminal justice policy. As the new existing efforts suggest, social media enables defenders to widely share the routine injustices they observe and to engage with local grassroots organizations to build coalitions. Defenders\u27 strategic use of social media won\u27t change policies overnight, but we are hopeful that it will augment public support for defenders and their clients and build power to transform the criminal legal landscape over decades
