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Apprendi's Two Constitutional Rights
No full textThe Sixth Amendment right to a jury trial applies "in all criminal prosecutions." But when does a "criminal prosecution" end? In United States v. Haymond, the latest in the line of Apprendi v. New Jersey cases, the U.S. Supreme Court fractured on the question of whether postsentence revocations of supervised release fall within the Sixth Amendment right's scope. With Haymond as its
vantage point, this Article suggests that the Court's post-Apprendi jurisprudence has intertwined the Sixth Amendment jury right with Fifth Amendment due process and that the constitutional law of sentencing would be well served by disentangling these two fundamental protections and refocusing on due process
Taxation of the Digital Economy: Adapting a Twentieth-Century Tax System to a Twenty-First-Century Economy
No full textDigitalization has transformed everyday life. Routine functions are performed by using assorted digital applications and the online consumer is at the center of modern business models. Many of the world’s largest companies are highly digitalized, including Google, Amazon, Facebook, Apple, and Microsoft. The digital economy offers great benefits to society, yet its unique attributes have produced considerable tax challenges. This is primarily because highly digitalized business models often do not conform with traditional international tax characterizations. Most notably, highly digitalized businesses can earn profits in foreign economies without creating physical permanent establishments that give rise to taxing rights. As a result, significant profits remain untaxed by market jurisdictions despite the sustained involvement of highly digitalized enterprises in those market jurisdictions. International efforts are underway to address the tax challenges arising from digitalization. The OECD is working through an inclusive framework comprised of 137 countries, large and small, to achieve a long-term consensus-based solution on new taxing rights and profit allocation norms. Meanwhile, as of January 2021 approximately 38 jurisdictions have announced, proposed, or already adopted unilateral measures to tax revenues from digital services provided within their jurisdictions
Color of Covid and Gender of Covid: Essential Workers, Not Disposable People
No full textWe live in a viral moment—a moment of interconnected pandemics. The COVID-19 crisis provides a window into the underlying pandemics of inequality, economic insecurity, and injustice. In fact, the viruses of sexism, racism, and economic instability are pre-existing conditions of an unjust legal system—baked into our nation at the Founding in the shadow of chattel slavery, female disenfranchisement, property-based voting rights, and Native American dispossession. COVID-19 has not created these conditions, but instead has amplified the persisting inequalities upon which the nation was built. At the same time, the current viral moment reveals that vulnerability is universal—inherent in being human—making Martha Fineman’s vulnerability analysis particularly timely for theorizing a framework that manages our common vulnerabilities, even against a backdrop of differential vulnerability. Commentators have observed, “coronavirus doesn’t discriminate . . . But America does.” Even as COVID-19 has unmasked deeply embedded structural inequalities, this moment of interlinked pandemics of coronavirus, inequality, and economic precarity affects us all, albeit disparately, and has torn at the very fabric of the social contract we owe one other and, in fact, depend on. Drawing on insights from Derrick Bell’s notion of “interest-convergence” and Ruha Benjamin’s idea of “viral justice,” I propose a new concept, “viral convergence.” Both descriptive and prescriptive, I offer the idea of viral convergence as a way not only to analyze this moment of interlinked crises, but also to utilize it productively. The road ahead calls for new legal paradigms and political coalitions that offer both universal solutions (for our shared vulnerabilities) and more targeted solutions (for disparate impacts). As Arundhati Roy suggests, we must both acknowledge the tragedy while also utilizing this crisis for transformational change by viewing the COVID-19 pandemic as a “portal” to a more just and equal world
Movement Capture or Movement Strategy? A Critical Race History Exchange on the Beginnings of Brown v. Board
No full textIn 2019, Megan Ming Francis published a path-breaking article challenging the conventional wisdom in the field on a core piece of civil rights history: the role of a philanthropic foundation called the American Fund for Public Service, also known as the Garland Fund, in working alongside the NAACP to produce the organization’s famous litigation campaign leading to Brown v. Board of Education. Starting in the late 1920s and early 1930s, education came to occupy a central place in the NAACP’s agenda, and education desegregation became the focus of its efforts to break the back of Jim Crow. In Francis’s provocative account, the predominantly white Garland Fund captured the agenda of the civil rights organization through its financial influence, shifting the organization’s central focus from racial violence toward education equality. An organization that had been focused on protecting Black lives from white violence reoriented its attention to a new campaign, which siphoned off resources from other projects, such as workers’ economic rights and Black labor concerns
The Right to Express Milk
No full textBreastfeeding in public has become more accepted, but milk expression—defined as removing milk from the breasts manually or using a breast pump—continues to be seen as a distasteful bodily function analogous to urination or sex, which should be confined to the private sphere. Few states explicitly exempt milk expression from their indecent exposure and obscenity laws. Yet, far from being a marginal activity, milk expression is often a necessary component of successful lactation. It allows parents with disabilities that challenge feeding at the breast to produce milk. It is instrumental in feeding babies who are unable to suckle at the breast or those who are temporarily separated from their parents, whether because the parents are ill, must report to work, have shared custody, or need to participate in political, social, and other aspects of life. In other words, milk expression is vital for human milk feeding in numerous circumstances and necessary for lactating parents to enjoy equal citizenship on par with non-lactating people. Legal scholarship is growing in the field of lactation law, but work that specifically focuses on milk expression and its legal implications beyond the workplace—from the regulation of breast pumps as medical devices to the question of whether public milk expression should be protected—is missing. This Article contributes to the literature by arguing that milk expression should be recognized as part of a reproductive justice-based right to breastfeed through a combination of civil rights, FDA law, insurance law, health law, tax law, and work law. Parents need paid parental leave, paid lactation breaks, and access to affordable, high-quality, and culturally competent healthcare and lactation counseling and technology. In addition, they should have the right to express milk in every space where they have the right to be present
Movement Capture or Movement Strategy? A Critical Race History Exchange on the Beginnings of Brown v. Board.
No full textIn 2019, Megan Ming Francis published a path-breaking article challenging the conventional wisdom in the field on a core piece of civil rights history: the role of a philanthropic foundation called the American Fund for Public Service, also known as the Garland Fund, in working alongside the NAACP to produce the organization's famous litigation campaign leading to Brown v. Board of Education. Starting in the late 1920s and early 1930s, education came to occupy a central place in the NAACP's agenda, and education desegregation became the focus of its efforts to break the back ofJim Crow. In Francis'sp rovocative account, the
predominantly white Garland Fund captured the agenda of the civil rights organization through its financial influence, shifting the organization's central focus from racial violence toward education equality. An organization that had been focused on protecting Black lives from white violence reoriented its attention to a new campaign, which siphoned off resources from other projects, such as workers' economic rights and Black labor concerns.
In this exchange, Francis and legal historian John Fabian Witt debate exactly who captured whom in the relationship between the NAACP and the Garland Fund. Their exchange engages method and substance in the history of civil rights. Among other things, Witt contends that the NAACP's leadership also subtly coopted the Garland Fund's resources and turned them toward the civil rights organization's preexisting objectives rather than vice versa. In Witt's account, the NAACP figured out how to advance its agenda through the Garland Fund, and the efforts of the two organizations became co-joined. The Francis-Witt debate has important
implications for our understanding of the paths taken and not taken during the civil rights movement, how social mobilization came to focus on formal legal doctrine rather than concrete social or political ends, and whether the law can truly be turned against systems of oppression. Whichever account is correct, the aftereffects of the NAACP-Garland Fund relationship still reverberate today.
The exchange proceeds with an opening statement by Francis, and reply by Witt, and a surreply by Francis, and a closing note from Witt
Is Administrative Law at War with Itself?
No full textDick Stewart's classic 1975 article, The Reformation of American Administrative Law, sought to find a satisfying and comprehensive
rationale for the legitimacy of our vastly expanded and expanding administrative state. His article ends with the following
marvelous, but almost despairing, sentences:
The instinct for satisfying integration may remain a vain shuttlecock between no longer tenable conceptions of administrative legitimacy and the exigent difficulties of the present, which have so far eluded a consistent general theory. Given "the undefined
foreboding of something unknown," we can know only that we must spurn superficial analysis and simplistic remedies, girding
ourselves to shoulder for the indefinite future, the intellectual and social burdens of a dense complexity.'
Since Dick wrote those rather unsettling lines, much has changed. But one thing has stayed the same: a consistent general
theory of administrative legitimacy still eludes us. Indeed, I want to argue in this brief Article that the two main directions of development in administrative law since 1975 seem deeply contradictory
Towards an Administrative Law of Central Banking
No full textA world in turmoil caused by Covid-19 has revealed again what has long been true: the Federal Reserve is arguably the most powerful administrative agency in government, but neither administrative-law scholars nor the Fed itself treat it that way. In this Article, we present the first effort to map the contours of what administrative law should mean for the Fed, with particular attention to the processes the Fed should follow in determining and announcing legal interpretations and major policy changes. First, we synthesize literature from administrative law and social science to show the advantages that an agency like the Fed can glean from greater openness and transparency in its interpretations of law and in its long-term policymaking processes. These advantages fall into two categories: (1) sending more credible signals of future action and thereby shaping the behavior of regulated parties and other constituents, and (2) increasing the diversity of incoming information on which to base decisions, thereby improving their factual and predictive accuracy. Second, we apply this framework to two key areas—monetary policy and
emergency lending—to show how the Fed can improve its policy signaling and input diversity in the areas of its authority that are most expansive. The result is a positive account of what the Fed already does as an administrative agency and a normative account of what it should do in order to preserve necessary policy flexibility without sacrificing the public demands for policy clarity and rigor
Rise of the Zombies: The Significance of Venture Capital Investments That Are Not Profitable
No full textThis article proposes an explanation for the pervasiveness of convertible preferred stock as the security of choice for venture capital funds when investing in entrepreneurial ventures
Procedurally just organizational climates improve relations between corrections officers and incarcerated individuals.
No full textCorrectional officers’ attitudes about the treatment of inmates can affect an inmate’s experience within a correctional institution.
Previous research, largely outside correctional settings, suggested that individual (e.g. personality traits; racial bias) and organizational (e.g. procedural justice; training) factors related to attitudes regarding inmates. However, research involving correctional officers has been limited. In a sample of correctional officers (N = 89), we collected self-report measures of punishment-oriented attitudes, individual (personality traits, racial bias), and organizational (procedural justice in the work environment) factors. Agreeableness, a personality trait, and procedural justice in the work environment were significantly negatively associated with punishment-oriented attitudes, whereas racial bias was significantly positively associated with these attitudes. Furthermore, correctional officers who worked on a new rehabilitation-focused unit had higher perceptions of
procedural justice in their work environment, and this was associated with more positive attitudes toward inmates. The present study provided preliminary evidence that both individual and organizational factors were important to consider within a correctional setting, but that instituting a procedurally just culture in the prison could promote more humane attitudes toward those currently incarcerated