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Prevention Beyond Deterrence
No full textThis Article reconceptualizes preventive justice—the public safety paradigm that seeks to prevent harm before it occurs. Scholars have long documented how cities have advanced this paradigm through largely punitive measures, notably variants of broken windows policing, which posit that aggressive misdemeanor enforcement deters more serious crime. Yet in the aftermath of the 2020 George Floyd protests, and as underscored recently in City of Grants Pass v. Johnson, these measures have faced a legitimacy crisis—prompting calls for nonpunitive responses to nonviolent incidents.
This Article establishes a preventive justice approach that advances health and safety without emphasizing crime deterrence. It draws on fieldwork research on alternative emergency response programs (“Alternative Responses”) that proliferated after the 2020 protests to replace police in health crises and other nonviolent incidents. Data include interviews with fifty individuals and over two hundred hours of observations in Oakland, California; Dayton, Ohio; and Madison, Wisconsin.
The findings reveal a paradox. Although government officials claimed Alternative Responses to be separate from police, these programs are in fact institutionally enmeshed with law enforcement agencies. But despite this enmeshment, Alternative Responses employ distinct preventive methods at the street level: While police deter crime via traditional enforcement actions, these programs prevent harm through various nonpunitive means, notably the provision of life-sustaining resources and connections to needed services.
This research illuminates a preventive justice approach called “supported crisis response.” Grounded in a revised, health-centered understanding of rehabilitation, this approach ensures that people have agency to make decisions, resources to bring those decisions to fruition, and support to sustain the fruits of those choices. This approach also suggests a model for public safety governance—one that requires near-term reforms and long-term structural changes to expand Alternative Responses’ involvement in nonviolent incidents and to limit the role of police
Pharmaceutical Mergers: Do We Have the Right Cure?
No full textFew federal agencies wield tools more powerful than the Federal Trade Commission’s authority to review—and deny—proposed mergers between companies. This authority is powerful for a reason: Large mergers can be uniquely harmful to the United States economy, potentially reducing competition, undercutting consumer choice, and inflating prices.
The pharmaceutical industry is particularly sensitive to merger harms, given the limited number of competitors and the inelasticity of demand for prescription drugs. As a result, when pharmaceutical companies seek to merge, the FTC often requires that one of the companies divest ownership of certain drugs not yet on the market—so-called “pipeline” drugs––to a third party.
FTC evaluations deem the pipeline divestiture program a complete success. But does it really work? As a client once said when asked this question, “It depends on what you mean by ‘it’ and ‘work.’” In prior research, the FTC determined the success of a divestiture based solely on whether it occurred––rather than whether it meaningfully preserved competition post-merger. Our first-of-its-kind study reveals that pipeline divestitures have not in fact worked. Using conservative measures, our analysis shows that 81% of divested pipeline products fail to attain even a 1% share of their relevant markets.
But all is not lost: With a few key changes, drug divestiture can indeed achieve its intended effects. We recommend that the FTC require either a “crown jewel divestiture” (selling the on-market product, not the pipeline product) or a “skin in the game divestiture” (if the pipeline product fails, the company divests its on-market product)
Civil Litigation in the Nineteenth Century Landraad of the former Dutch East-Indies (Indonesia): Simplification Aimed at Access to Justice?
No full textWhen Constitutional Protection for Religious Liberty Gets Lost in Translation: A Case Study from Washington State
No full textProtecting religious liberty can present difficult challenges when religious liberty conflicts with laws prohibiting discrimination. Balancing religious liberty and nondiscrimination requires courts to accurately apply the U.S. Supreme Court’s complex First Amendment jurisprudence, including cases that address compelled speech, expressive association, and church autonomy. Amidst all the complexity, protection for religious liberty can get lost in translation. One important venue where protection can get lost in translation is in religious liberty cases decided by state supreme courts. The decisions of state supreme courts are especially significant because they provide the authoritative construction for state statutes and the state constitution. In other words, unless the U.S. Supreme Court rules otherwise, trial courts, legislators, and government officials rely on and abide by decisions of the state supreme court in matters of religious liberty.
To illustrate the challenges presented when state supreme courts translate First Amendment religious liberty jurisprudence, this article explores a recent decision from the Washington State Supreme Court, Woods v. Seattle’s Union Gospel Mission. The Woods decision applied the U.S. Supreme Court’s “ministerial exception” cases but did not address cases that protect freedom of expressive association and guard against compelled speech or consider protection for the free exercise of religion. In other words, key protections for religious liberty got lost in translation. This article shows the powerful practical impact when constitutional protection for religious liberty gets lost in translation by a state supreme court. This can be seen, for example, in actions taken by the Washington State Attorney General and the Washington State Legislature against a religiously affiliated university for its employment practices. For trial courts deciding religious liberty issues after Woods, the article highlights other Washington Supreme Court religious liberty cases that could provide useful guidance in balancing religious liberty and nondiscrimination. And the article proposes that the Washington State Legislature redraft Washington’s Law Against Discrimination to better align with the U.S. Supreme Court’s religious liberty jurisprudence while, at the same time, enhancing protection against discrimination when doing so does not interfere with sincerely held religious beliefs
