18512 research outputs found
Sort by
THE KIDS ARE NOT ALRIGHT: ENDING THE UNCONSTITUTIONAL RELIANCE ON JUVENILE CONDUCT TO ENHANCE FEDERAL CRIMINAL SENTENCES
No full textBenjamin Scharps Prize
J. Forman, B. Ackerman, Z. Liscow, J. Resnik
Best paper by a third-year student.Under the U.S. Sentencing Guidelines’ recidivism provisions, prior judgments can be used to enhance a federal defendant’s advisory sentence and block relief from draconian mandatory minimums. This includes past offenses the defendant committed before age 18—whether the individual was prosecuted as an adult or as a juvenile. The use of pre-18 conduct to enhance later adult sentences is both constitutionally suspect and bad policy. First, the practice stands in tension with the U.S. Supreme Court’s juveniles-are-different line of cases that has recognized that “children are constitutionally different from adults in their level of culpability.” Second, the way in which the Guidelines draw a line between juvenile and adult priors generates unequal treatment between similarly situated defendants based on geography and race, a result at odds with the Guidelines’ “primary goal” of eliminating unwarranted sentencing disparities. Third, because juvenile systems in many states impose punitive sanctions while denying young people the right to a jury trial, the Guidelines enhance sentences based on convictions obtained in violation of the Sixth Amendment. Now that the U.S. Sentencing Commission is back in action following a three-and-a-half-year hiatus, this article recommends that the Commission amend the Guidelines to prohibit the use of offenses committed before age 18 to enhance advisory sentences. While those changes are pending, criminal defense attorneys and judges should implement training sessions to educate themselves about the flaws in the Guidelines so they can adjust their advocacy and sentencing decisions accordingly
Strategic Human Rights Litigation: A Feminist Reflection
No full textVol. 34.2:105In 2012, I was lucky enough to attend a Black feminist event at the Trafford Rape Crisis Centre in Manchester, United Kingdom, where Kimberlé W. Crenshaw and Sara Ahmed spoke about intersectional feminism. Ahmed explained that she often turns to the work of Audre Lorde as a feminist lifeline. Lifelines can be “anything or perhaps it is always something” and that something might be “words sent out by a writer, gathered in the form of a book, words that you hang on to, that can pull you out of an existence, which can, perhaps later, on another day, pull you into a more livable world.” Lorde’s work questioning whether the master’s tools could ever dismantle the master’s house, is among my lifelines. The question has taken on a different significance for me and has become central to my own thinking about strategic feminist praxis and the law. Can the law ever really dismantle patriarchy and challenge the oppression and discrimination women suffer through structural inequalities? What is the role of the master’s tools in all of this? How is the law complicit in such oppression
The NBA’s “One-and-Done” Rule: Procompetitive Justifications and Anticompetitive Effects
No full textJudge Ralph K. Winter, Jr. Prize for Law and
Economics
A. Klevorick, J. Macey, N. Sarin
Awarded annually to the best student paper written in law and economics.In 2005, the National Basketball Association (NBA) implemented a rule prohibiting players from entering the League directly after high school. To be
eligible to join the NBA, players need to meet two conditions: (1) at least one
year must have elapsed since they graduated high school, and (2) they must be
19 years old or must turn 19 the year they enter.1 This rule,2 often termed the
“One-and-Done” Rule, was first enacted in advance of the 2006 NBA draft. The
most talented high school athletes tend to compete in National Collegiate
Athletic Association (NCAA) basketball until they are eligible to play
professionally, although a few alternative options do exist. To fully understand
the anticompetitive and procompetitive effects of the One-and-Done Rule, this
Article will examine the justifications and consequences of the rule under a fullrule-
of-reason approach that courts may take if the legality of the rule were to be
litigated.3 The following analysis demonstrates that, on balance, the rule has
salient anticompetitive effects on the market for talented young basketball
players, and may violate antitrust laws
More Competitive Search Through Regulation
No full textThis Article identifies a set of possible regulations that could be used both to make the search market more competitive and simultaneously ameliorate the harms flowing from Google’s current monopoly position. The purpose of this Article is to identify conceptual problems and solutions based on sound economic principles and to begin a discussion from which robust and specific policy recommendations can be drafted
Privacy for Sale: The Law of Transactions in Consumers’ Private Data
No full textVolume 40, Issue 1Lawmakers, regulators, consumer advocates, and the business community have focused increasing attention on the policy issues that arise at the intersection of privacy, technology, and commerce. Yet the law governing what businesses can do with consumer data remains unsettled and unclear. The United States has no dedicated and comprehensive privacy law, relying instead on a patchwork of general consumer protection laws and industry-specific regulations like HIPAA. The FTC has created what scholars have called a “common law of privacy” through its enforcement actions and published guidance, but how privacy law applies to business practices often remains uncertain.
This Article uncovers a large new trove of privacy law, elaborating the jurisprudence of privacy with reports submitted to courts in which hundreds of millions of consumers’ private information has been put up for sale. A unique provision of bankruptcy law requires the appointment of a privacy expert when consumer information is put up for sale, to report on the sale’s legality. These expert reports constitute an unrecognized but substantial body of privacy law. The Article presents and analyzes reports submitted from 2005 to 2020—a hand-collected dataset gathered from 141 court dockets. The reports dramatically increase what is known about how the “common law of privacy” applies in practice to sales of consumer data in a legal forum, and what the future of privacy law may hold
The Case for Designing Tech for Social Cohesion: The Limits of Content Moderation and Tech Regulation
No full textVol. 34:3Based on nearly 60 interviews with staff at tech companies, critics of big tech, civil society groups impacted by tech-amplified social media, and new tech startups, research revealed three distinct but complementary narratives or approaches to thinking about polarization and social cohesion in digital spaces. The “User-Centered” Narrative describes harmful content online as generated by users, with social media products and search engines acting as a mirror of society. Several interviewees described the defeating feeling of playing “whack a mole” against the growing tide of individual and state-sponsored industrialized harmful digital content. This narrative points to the need for content moderation on user-generated content and digital media literacy to help the public navigate information and communication on the internet.
The “Tech Design Regulation” Narrative describes harmful content as amplified by tech product designs including the affordances and algorithms that are optimized for user engagement, advertising, and shareholder profit. Many social media companies optimize their product designs for user engagement to maximize their ad-based profits. Machine learning algorithms promote emotionally alarming and divisive content which tends to garner more attention, just as cars slow down driving past a car accident and as news outlets use the “if it bleeds, it leads” principle to prioritize alarming news. From this point of view, some tech products incentivize harmful content that drives toxic polarization. This narrative presses for government regulation to extend beyond privacy to regulating tech profit models, algorithms, affordances, and designs that amplify toxic content.
The “Social Cohesion by Design” Narrative describes tech products that amplify and scale social cohesion by designing affordances and algorithms optimized for these purposes. These digital products can support human agency to participate in civic action, bridge divided communities, and build trust between the public and institutions.
The first half of this article provides explores the complex relationship between toxic polarization and digital spaces and analyzes these three frames or paradigms for understanding the role of digital spaces in toxic polarization. The second half of the paper focuses on examples and case studies of “social cohesion by design” also known as "peacetech.
Teaching Terrorists: How United States Counterterrorism Law Violates International Humanitarian Law
No full textVol. 48In 2021, Yemen was the site of one of the worst humanitarian crises in the
world. Since war broke out in 2014, war crimes by the multiple state and nonstate
parties involved have inflicted immeasurable harm on civilians. Geneva
Call, a Swiss non-governmental organization (NGO), has worked in Yemen for
years to strengthen respect for international humanitarian law (IHL) by non-state
armed groups (NSAGs). One such group is Ansarallah, an NSAG also referred
to as the Houthis, which controls large swathes of northern Yemen. Geneva Call
teaches IHL to NSAGs like the Houthis as part of efforts to protect civilians from
the worst abuses committed during armed conflict. Yet the United States made
Geneva Call’s educational work illegal for thirty-three days in 2021
Our Moment - Letter from the Editor
No full textVol. 34.2:1his Symposium was inspired by events that took place last summer.
In fact, I have measured the past decade in summers. In summer 2013, a jury failed to provide legal justice for Trayvon Martin, and the verdict sparked the Black Lives Matter movement. The next summer, Michael Brown’s death at the hands of a police officer inspired intense protests in Ferguson, Missouri. During summer 2015, nine black American worshippers were murdered at the historic Emanuel AME Church in Charleston, South Carolina. President Obama sang “Amazing Grace,” and Congress failed, once again, to reform our gun laws. But a week later, Americans celebrated the United States Supreme Court’s landmark decision in Obergefell v. Hodges, which held that the Fourteenth Amendment protects the right to same-sex marriage
Black Feminist Thought Grounds and Centers Us: A Reflection by Two Activists and Legal Workers
No full textVol. 34.2:122Working in and around the law for the past several years, we became acutely aware of—have felt in our bones—a certain paradox in the law: how legal resources and opportunities to shape the law are completely unavailable to the vast majority of people in the United States, and yet legal structures exert an enormous, tsunami-like force on those people, even those who are trained to work within those structures. Give birth to a baby who tests positive for opioids? The law says the state can take your baby away. How does the law govern when and how you can get your child back? Can you—and how often can you—visit your baby? What must you do to be reunited? How long can the agency that took your kid away stay in your life? The answers to all these questions should be readily available to you, but instead, they will likely be made up as you churn through the system
Deterritorializing Abortion: Gender, Law, and Procedure
No full textVol. 34.2:74In the wake of the Dobbs v. Jackson Women’s Health Organization United States Supreme Court decision—which overturned the landmark decisions in Roe v. Wade and Planned Parenthood v. Casey—UC Berkeley Law Professor Khiara M. Bridges testified before the United States Congress about the potential catastrophic consequences of the ruling. Bridges discussed abortion as an issue impacting people with the capacity for pregnancy, which was met with intense opposition and disregard from
Missouri Republican Senator Josh Hawley. He insisted that abortion was a “women’s right issue,” while pressuring Bridges to agree. However, in a clear and direct response, Bridges offered firm rebuttal, noting that this line of questioning from Hawley was transphobic, stating further, “Denying that trans people exist and pretending not to know that they exist is dangerous.”
This, she argues—and the argument presented here will agree—“opens up trans people to violence,” given that multiple genders are represented under the umbrella of people needing abortion access and care