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The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions Involving Disabled Mothers
No full textThe right to parent has long been regarded as one of our most treasured fundamental rights. Despite the disability rights movement’s many achievements, especially the passage of the Americans with Disabilities Act (“ADA”) in 1990, the right to parenthood remains inaccessible to many people with disabilities. Scholars and advocates have posited that the ADA has not adequately protected the rights of parents with disabilities involved with the child welfare system, particularly at the termination of parental rights phase. This Article develops this critique as applied to an original empirical study of 2,064 appellate termination of parental rights decisions adjudicated between 2006 and 2016 that involved mothers with disabilities. This is the first study to conduct quantitative analyses to identify factors that predict whether the ADA is raised or applied in these cases. In particular, we aimed to understand if a mother’s disability type predicts whether courts raise or apply the ADA
The Zoning Strait Jacket: The Freezing of American Neighborhoods of Single-Family Houses
No full textMunicipal zoning practices profoundly shape urban life in the United States. In regions such as Silicon Valley, regulatory barriers to residential construction have helped raise house prices to roughly ten times the national median. These astronomic prices have prompted some households to move to places, such as Texas, where housing is far cheaper. I have been engaged in an empirical study of zoning practices in Silicon Valley, Greater New Haven, and Greater Austin. This Article presents one of my central findings, induced from those metropolitan areas and elsewhere: local zoning politics typically freezes land uses in an established neighborhood of detached houses. The consequences are profound. Single-family neighborhoods constitute a solid majority of urban land in the United States. Within these frozen neighborhoods, real estate markets cannot respond to changes in supply and demand conditions.
This Article marshals a variety of evidence to prove that the zoning straitjacket exists. It also discusses possible exceptions to it. The most plausible is proximity to a newly opened transit node, an event that may transform zoning outcomes, even in a neighborhood of houses. Building on the work of others, notably William Fischel, I explore the dynamics of local zoning politics. The goal is to develop an overarching theory that is consistent with the larger study's three basic empirical findings: that suburbs in Greater Austin, Texas, are relatively pro-growth; that, even in Greater Austin, zoning policies freeze land uses in established neighborhoods of detached houses; and that the opening of a new transit node sometimes can loosen the zoning straitjacket
Race and Empire: Legal Theory Within, Through, and Across National Borders
No full textIn January 2020, we convened the UCLA Law Review Symposium, entitled Transnational Legal Discourse on Race and Empire. In this Article, which also serves as an introduction to the Issue that resulted from the Symposium, we seek to do two things. Our first objective is to situate this Symposium Issue within its broader intellectual context: renewed momentum among Third World Approaches to International Law (TWAIL) scholars to engage Critical RaceTheory (CRT) scholars in collaboration aimed at deeper understanding of issues of shared concern. Our second objective, is to offer a concrete example of the insights to be gained from TWAIL-CRT analysis through a brief consideration of the Libyan case, where humanitarian intervention, counterterrorism, and migration control regimes in international law cannot be fully assessed absent engagement with empire and race. Mainstream and official analysis casts the international system and its hegemonic actors in the role of humanitarian responders to a Libyan crisis not of their making. Instead, we draw attention to the ways in which the racial framing of Libya--and its subordination to imperial prerogatives--proved critical to international governance regimes for managing the country--and the bodies and territory within it--from 2011 to the present
Democratizing the Supreme Court
No full textProgressives are taking Supreme Court reform seriously for the first time in almost a century. Owing to the rise of the political and
academic left following the 2008 financial crisis and the hotly contested appointments of Justices Neil Gorsuch and Brett Kavanaugh, progressives increasingly view the Supreme Court as posing a serious challenge to the successful implementation of
ambitious legislation. Amy Coney Barrett's confirmation to take Justice Ruth Bader Ginsburg's seat after her death in fall 2020
brought these once-marginal concerns to the forefront of American political debate, prompting a promise from now-President Joseph Biden, on the eve of his election, to form a national commission for court reform.
Despite this once-in-a-lifetime energy around the idea of court reform, the popular and academic discussion of how to reform the
Supreme Court has been unduly constrained. Even if the commission proves to be a ploy to postpone reform, it is crucial to clarify the debate around possible ends and means of reform, for the debate is unlikely to die out. This is the case with regard to the mechanism and the purpose of reform alike. On the left, historical memory has limited debate almost entirely to "court-packing. "Meanwhile, the center has occupied itself with how to restore the Supreme Court's legitimacy by rescuing the institution from its regrettable slide into partisanship. And now, as the Court appears to moderate itself in an effort to preempt legislative reform of the institution, the concern is that progressives will drop their demands for change, satisfied with a few modest judicial concessions.
This Article aims to keep the discussion of court reform alive for more propitious circumstances and, just as importantly, to
significantly expand its bounds. It does so, first, by urging progressives to reject the legitimacy frame of the issue, which treats the problem with the Supreme Court as one of politicization, in favor of an openly progressive frame in which the question is how to enable democracy within our constitutional scheme.
Second, the Article introduces a distinction between two fundamentally different mechanisms of reform. The first type of reform,
which we call personnel reforms, includes both aggressive proposals like court-packing and more modest (or politically moderate) reforms such as partisan balance requirements or panel systems. All of these reforms take for granted the tremendous power the Supreme Court wields. What these proposals do is change the partisan or ideological character of the individuals who wield it. The second type of reform, which we call disempowering reforms, includes proposals like jurisdiction stripping and a supermajority requirement for judicial review. These reforms take power away from the Court and redirect it to the political branches instead. As we argue, personnel reforms are mostly addressed to the legitimacy frame that progressives would do well to reject. More still, to the extent such reforms advance progressive ends, they do so only contingently and threaten to do as much harm as good over time. By contrast, disempowering reforms, we argue, advance progressive values systematically. While such reforms would not guarantee advances in social democracy, they would ensure that the battle for such advances takes place in the democratic arena. For progressives, this is where such reforms have to occur now and should occur if they take place anywhere
Pursuing Value‐Based Prices for Drugs: A Comprehensive Comparison of State Prescription Drug–Pricing Boards
No full textContext: Rising prescription drug costs are consuming a growing proportion of state and private budgets. In response, lawmakers have experimented with a variety of policies to contain spending and achieve value in prescription drugs. As part of this series of reforms, some state legislatures have recently authorized prescription drug–pricing boards to address the high prices of brand-name prescription drugs and assess the value of those drugs.
Methods: We identified state prescription drug–pricing boards in the United States, defined as any agency authorized by a state legislature to review specific drugs and pursue value-based drug prices. To describe the characteristics of the boards, we obtained public records of authorizing legislation, guidance documents, and board meeting minutes.We compared the boards’ powers and
responsibilities and analyzed completed pricing reviews.
Findings: Six state drug-pricing boards in five states met our definition; their design varied substantially. Two of the boards (New York Medicaid and Massachusetts) have authority over drug rebates paid by state Medicaid programs, one (New York Drug Accountability Board) has jurisdiction over state regulated commercial insurance, and another three (Maine,Maryland, and New
Hampshire) oversee non-Medicaid, state-funded insurance. Three boards are authorized to require manufacturers to confidentially submit information related to the pricing and clinical effectiveness of reviewed drugs to inform value determinations. Only one board (New York Medicaid) had completed pricing reviews as of June 3, 2021.
Conclusions: Boards’ structure, scope, and statutory leverages to compel manufacturers to negotiate lower net costs are key factors that influence whether and to what extent boards can achieve cost savings for states. Though legal constraints may limit the effective reach of prescription drug–pricing boards, these agencies can enable states to address rising prescription drug costs, in part by virtue of their very existence. To overcome practical limitations, states seeking to implement similar policies can build on the experiences and designs of current boards
And They Took My Milk!
No full text"After I left you, those boys came in there and took my milk. That's what they came in there for. Held me down and took it. I told
Mrs. Garner on em.... Them boys found out I told on em. Schoolteacher made me open up my back, and when it closed it made
a tree. It grows there still." "They used cowhide on you?" "And they took my milk." "They beat you and you was pregnant?" "And they took my milk!" -Toni Morrison, Beloved
Before reading Andrea Freeman's insightful book, Skimmed: Breastfeeding, Race, and Injustice, I had never heard of the Fultz
quadruplets. But I grew up in South Carolina, one state over from the Fultz sisters, in a household where there were always cans of Pet Evaporated Milk in the cabinets. We used evaporated milk for all sorts of things, from creaming and sweetening coffee to making strawberry shortcake for Sunday dinner. Although I am a generation younger than the Fultz quadruplets, I also grew up in a place where, to my knowledge, no one breastfed. Certainly not my mother, my aunts, or any of the other middle-class Black women in our circle. Breastfeeding was primitive and indecent, as primitive as the Africans I saw every afternoon after school when Tarzan was on, and as indecent as the naked African women that seemed to be in every issue of National Geographic magazine. In the Southern Black community where I grew up, breastfeeding was like scrubbing clothes with a washing-board when a washing machine was available-it just wasn't done. Or rather, I assume it just wasn't done.
Skimmed's brilliance is that it disabused me of my naivete. Freeman's book showed me the interconnected web that constrains the
"decision" not to breastfeed, including laws, history, marketing, and more. As Freeman notes, "Approximately 83 percent of White
mothers and 82.4 percent of Latinx mothers report ever attempting to breastfeed, while 66.4 percent of Black mothers report ever trying" (p. 10). When adding class, the numbers are even more extreme: "Only 37 percent of low-income Black women initiate breastfeeding" (pp. 10-11). The facile assumption might be that Black mothers, particularly poor Black mothers, are more likely to grow up in poorer "communities with minimal to nonexistent breastfeeding resources and support mechanisms[.]" But as Skimmed reveals, "the problem is even deeper" (p. 4). By weaving together the story of the Fultz sisters, Freeman demonstrates the interconnectedness of Pet Milk using the quadruplets as commodities, along with the lasting impact of slavery and the bad mother trope, and the entanglement of the government and corporations in marketing formula, particularly to low-income women
Turf Wars: Arming Congress’s Gang (of Eight)
No full textThis Note explores how Congress can respond to a president who withholds non-covert intelligence operations from the congressional intelligence committees in violation of the National Security Act. This Note proposes a novel solution for Congress: the elevation of the Gang of Eight into a joint permanent select committee that is authorized to file suit on behalf of Congress. Congressional lawsuits are likely to be challenged on the basis of standing. Gang of Eight lawsuits could empower congressional leaders to meet a court’s standing analysis, allowing Congress to reassert its role in overseeing the intelligence community
Health Rights for LGBTQ+ Individuals in the U.S. Under Fire
No full textThe triumph of marriage equality for lesbian, gay, bisexual, transgender, and other sexual and gender minority (LGBTQ+) persons in Obergefell v Hodges (2015)1was a transformational civil rights victory, along with the US Supreme Court’s subsequent ruling on employment discrimination in Bostock v Clayton County (2020).2 The Supreme Court decisions portended great changes for more inclusive family law and affordable access to health care. The National Academy of Sciences concluded that discrimination can powerfully harm the health and well-being of sexual and gender minority members. These harms are amplified by further marginalization by race/ethnicity, income insecurity, and atypical gender identity. Yet a new Supreme Court conservative majority may well clawback vital legal protections.
In the wake of Obergefell, more than half a million Americans have legally married persons of the same sex. Those marriages carry significant health benefits—not only a more secure social safety net, but also family health insurance as a job benefit, as well as rights to access spouses who are hospitalized and make medical decisions for spouses who become incompetent.
Despite its benefits, and with no evidence of negative effects on other families, Obergefell has come under fire, with some critics refusing to recognize same-sex marriages as equal to other marriages under law. Arkansas, for example, initially prohibited both spouses of the same sex from being recognized on their child’s birth certificate; the restriction is denigrating to the family and could create problems for the child in accessing health care benefits because she or he is not formally listed on an official document. However, in Pavan v Smith (2017), the Supreme Court reversed the Arkansas policy in a 6-to-3 majority ruling. And in Houston, when the city began offering health benefits to municipal employees with domestic partners of the same sex, the local Republican Party sued to stop it. The Texas Supreme Court subsequently allowed the suit to proceed
Introduction: History, Ideology, and the Crisis of Legal Critique
No full textThis symposium occupies the intersection of recent developments in the vicissitudes of critique. One is the ongoing discussion across the humanistic disciplines about whether critique—the standard mode of humanistic argument for decades—has had its day, or is in need of critique itself. And, more particularly, the symposium asks: how has this discussion been received in the domain of critical legal theory, if it has been received at all? A prominent thread in the pages that follow is a renewed question about the viability of Marxism—perhaps the ur-version of critique. Ironically, Marxism has had a complex or even distant relation to the dominant modes of critique in recent decades, both inside and outside the legal academy. With another wave of interest in the 1960s, the Marxist theories that were emphasized as time passed tended to represent Marxism’s culturalist forms (pre-eminently the work of the Frankfurt School). But all varieties of Marxism suffered in relation to post-Marxist social thought, including various forms of poststructuralism. Yet especially since the economic crisis of 2008, many believe Marxism needs to come back—and in its economistic and even materialist forms—for legal critique to be “truly” possible
Taxing Buybacks
No full textA recent rise in the volume of corporate share repurchases has prompted calls for changes to the rules governing stock buybacks. These calls for reform are animated by concerns that buybacks enrich corporate executives at the expense of productive investment. This emerging antibuyback movement includes prominent politicians as well as academics and Republicans as well as Democrats. The primary focus of buyback critics has been on securities-law changes to deter repurchases, with only passing mention of potential tax-law solutions. This Article critically examines the policy arguments against buybacks and arrives at a mixed verdict. On the one hand, claims that buybacks reduce corporate investment and inappropriately reward executives turn out to be poorly supported. On the other hand, the Article identifies legitimate tax-related concerns about the rising buyback tide. Buybacks exacerbate two of the U.S. tax system’s most severe flaws. The first is the “Mark Zuckerberg problem”: the effective nontaxation of firm founders on what is essentially labor income. The second is what we call the “Panama Papers problem”: the use of U.S. capital markets by investors in offshore tax havens to generate tax-free returns