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Between Cooperation and Conflict in Second Look Sentence Review
Get PDFThis Article offers the first scholarly assessment of new resentencing practices initiated by state prosecutors in the United States. Unlike the conviction integrity units that have become institutional fixtures in many prosecutors’ offices over the past two decades, attorneys working on resentencing matters rarely address concerns about the legal integrity or factual accuracy of the conviction itself. Prosecutors and defense attorneys instead consider the continuing integrity of the sentence imposed on the defendant. Perhaps a second look is necessary because the sentence imposed for the crime no longer appears necessary to serve public safety goals, because the prisoner has aged out of (or grown out of) criminal tendencies. Maybe the original sentence now appears disproportionate due to a shift in values and priorities for punishment. Or maybe the prisoner is now very expensive to house, due to illness and infirmity. Given the number of lengthy prison sentences being served in the United States, this expanded prosecutor function has transformative potential.
Both defense attorneys and prosecutors get involved in second look efforts. But we hesitate to say that these courtroom actors work together to achieve resentencing goals. The degree of cooperation on these matters varies by case and by jurisdiction, sometimes driven by the legal framework in which resentencing happens
Addiction and Liberty
Get PDFThis Article explores the interaction between addiction and liberty and identifies a firm legal basis for recognition of a fundamental constitutional right to freedom from addiction. Government interferes with freedom from addiction when it causes addiction or restricts addiction treatment, and government may protect freedom from addiction through legislation empowering individuals against private actors’ efforts to addict them without their consent. This Article motivates and tests the boundaries of this right through case studies of emergent threats to liberty made possible or exacerbated by new technologies and scientific understandings. These include certain state lottery programs, addiction treatment restrictions, and smartphone applications.
The right to freedom from addiction is supported by the nation’s history and tradition. In addition to addressing emergent threats to the freedom of thought, the right links together longstanding aspects of constitutional law assumed to be sui generis, including longstanding (until the 1970s) constitutional prohibitions on state lotteries, the exemption of gambling from direct First Amendment protection, and heightened state interests in controlling addictive drugs. The right to freedom from addiction is also an antisubordinating liberty because it connects the historically marginalized interests of people with substance use and gambling disorders with the increasingly mainstream movement to regulate big tech
40 Acres and a Mule: Accountability for Corporations to Provide Reparations to Historically Black Colleges and Universities for Profits from Slave Labor
Get PDFConsumer Bankruptcy in the Neoliberal State
Get PDFThe rise of financialized capitalism as a component of the neoliberal state has resulted in our debt-based economy, under which utilizing credit—and incurring significant debt—is a necessary strategy for individuals and families to avoid economic marginality and to maintain some semblance of financial security in an evaporated welfare state. The current capitalist logic of differential accumulation and financial expropriation has created perpetually indebted citizens for whom debt needs to be understood as a social power and as a class relation of domination and exploitation between creditors and debtors. Many consumers who experience unmanageable debt often turn to the bankruptcy process to find financial relief.
Drawing upon a critical sociological framework informed by both Marxist economics and conceptualizations of disciplinary power espoused by Michel Foucault, the purpose of this Article is to examine the role that the modern consumer Bankruptcy Code plays in the neoliberal state. I argue that the consumer Bankruptcy Code is a significant component of financialized capitalism and a statute intentionally constructed to advance the interests of the creditor class to the detriment of debtors. More specifically, my primary argument is that the consumer bankruptcy system embodies a legislative technology of disciplinary power molded to the ideals of the creditor class under neoliberalism and is but another step on the perpetual treadmill of living indebtedness as a form of quotidian existence for households across the nation. Seen through this theoretical perspective, the modern consumer Bankruptcy Code is a statutory mechanism for socially controlling the lower and middle classes by imposing discipline and inculcating a spirit of self-regulation where future debts can be managed and timely repaid as required by the neoliberal state
Lessons from United States Supreme Court Jurisprudence for Resolving Australian Interstate Groundwater Disputes
Get PDFDeveloping American Wine Law – Lessons from European Wine Regulation in the Face of Climate Change and Growing Demand
Get PDFSovereign Immunity Tests Bankruptcy’s Least Contested Axioms
Get PDFSection 106 of the Bankruptcy Code expressly abrogates the sovereign immunity of governmental units with respect to fifty-nine other provisions of the Code. There are currently two distinct issues splitting circuit courts over the meaning of this provision. First, does section 106 waive the sovereign immunity of the Internal Revenue Service in avoidance actions brought against it by a bankruptcy trustee under section 544(b)? Second, are Native American Indian Tribes “governmental units” within the meaning of section 101(27), such that their sovereign immunity is abrogated to the extent set forth in section 106? Invoking conventional canons of statutory construction, this Article takes the minority position on both issues, arguing that the IRS may not be sued under section 544(b) and that Tribes are not governmental units within the meaning of the Code. Moreover, these issues illustrate a tension between two of bankruptcy’s least contested axioms: (1) creditors with legally similar claims should be treated similarly; and (2) bankruptcy should not adjust nonbankruptcy entitlements unless necessary. A textualist reading suggests that, when it comes to sovereign immunity, the Code cuts this tension by privileging the second axiom over the first. It is for Congress—not the judiciary—to change that if necessary
Offshore Entanglements
Get PDFFor decades, scholars have struggled to determine how to deploy laws and legal institutions to spur economic prosperity. But, without knowing which legal rules and institutions to prioritize for a particular social context, the outcomes have been generally unsatisfactory. The case of offshore financial centers provides fresh and compelling new insights into this puzzle. This Article uses the sociological concept of community economic identity (“CEI”) to understand why some offshore financial centers prioritize investments in legal institutions that bolster their offshore finance enterprises while others do not. CEI refers to a community’s shared identity that is linked to a specific commercial enterprise.
Some offshore financial centers, such as the United Kingdom Overseas Territories (“UKOTs”) of Bermuda, British Virgin Islands, and Cayman Islands, have developed CEIs around their offshore sectors. This identity has led them to make credible and enduring commitments to legal rules and institutions — innovative corporate laws, financial regulatory agencies, and specialized commercialized courts — that directly support offshore finance activities. Other offshore financial centers, such as the UKOTs of Anguilla, Montserrat, and Turks and Caicos Islands, have not developed a CEI around offshore financial services and lack these sorts of legal and institutional investments. These jurisdictions have also not seen the same level of offshore finance success as Bermuda, British Virgin Islands, and Caymans Islands. CEI may therefore be relevant to determining which legal rules and institutions are appropriate to a particular jurisdiction’s economic prosperity
Deities’ Rights?
Get PDFA brief commotion arose during the hearings for one of twenty-first-century India’s most widely discussed legal disputes, when a dynamic young attorney suggested that deities, too, had constitutional rights. The suggestion was not absurd. Like a human being or a corporation, Hindu temple deities can participate in litigation, incur financial obligations, and own property. There was nothing to suggest, said the attorney, that the same deity who enjoyed many of the rights and obligations accorded to human persons could not also lay claim to some of their constitutional freedoms. The lone justice to consider this claim blandly and briefly observed that having specific legal rights did not perforce endow one with constitutional rights. Nevertheless, a handful of recent and high-profile disputes concerning Hindu temple deities and the growing influence of Hindu nationalist politics together suggest that the issue of deities’ rights is far from a settled matter. This article argues that declining to recognize deities’ constitutional rights accurately reflects dueling commitments in the Indian Constitution
The Coming Copyright Judge Crisis
Get PDFCommentary about the Supreme Court’s 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision’s seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board (“CRB”) unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB’s composition did not offend the Appointments Clause as long as Copyright Royalty Judges (“CRJs”) were removable at-will. But when the Court invalidated the selection process for administrative patent judges on a similar theory in Arthrex, it also rejected the D.C. Circuit’s remedy of requiring at-will removal, making the CRB unconstitutional—again. This problem is not insoluble, however, and the best available option would be to make CRJs subject to presidential appointment with Senate approval. This Essay highlights this novel insight regarding Arthrex, proposes legislative and judicial solutions to the problem of constitutionality, and reflects on the broader implications of these claims for copyright’s administrative law and Appointments Clause jurisprudence