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Rethinking Complicity in the Surveillance of Sex Workers: Policing and Prostitution in America's Model City
No full textThis Note uncovers a history that has been largely ignored, dismissed, and sometimes even intentionally obscured: the history of the policing of sex workers in the twentieth century. When most lawyers think about the surveillance of sex workers, they think of a standard cast of characters: police, prosecutors, pimps, purchasers, and procurers. But the surveillance of sex workers has always been much broader and renders a far greater number of actors complicit. This Note uncovers the significant (yet often overlooked) roles played by four groups in surveilling sex workers: (1) the federal government, (2) elite women, (3) public health authorities, and (4) major universities. As a case study, the Note focuses on the city of New Haven, Connecticut, during the twentieth century
A CONSTITUTION FIT FOR A NATION: THE INFLUENCE OF THE LAW OF NATIONS ON THE VIRGINIA PLAN AND JAMES MADISON’S CONSTITUTIONAL THOUGHT
No full textThe Constitutional Convention of 1787 forged a new nation, but it’s only recently that the full picture of what nationhood meant to the founders has come into focus. The world of the founders was a far more interconnected and globalized one than had been generally realized—a world in which numerous global empires struggled diplomatically, economically and militarily for land, riches and influence. In European capitals and even in the American colonies, diplomats, generals and politicians widely believed that these interactions between nations were governed by a set of natural law principles called the Law of Nations and conflict could be best avoided precisely by observing its rules. This presents a new, international factor to consider in analyzing the motivations and compromises of the founders, a dimension that is only just starting to receive scholarly attention
Early Access to Unapproved Medicines in the United States and France
No full textIn 2018, President Trump signed a federal “right to try” law, claiming that it would give desperately ill patients earlier access to unapproved medicines, by allowing the patient, doctor, and drug company to arrange for access without federal oversight. Critics of the law argued that it would not meaningfully increase access to experimental medicines, because federal oversight was not the obstacle in the first place. And they were correct. U.S. law already permitted companies to provide terminally ill patients with early access to unapproved medicines. The problem was instead that companies did not take advantage of this option. This Article offers new insights into U.S. law on early access, as well as the new right-to-try law, by offering a comparative perspective using French law
The Failure of Youth Sports Concussion Laws and the Limits of Legislating Health Education
No full textLegislatures have increasingly turned to education-based strategies to address significant public health challenges, despite unclear efficacy of statutory mandated education. In this Article, we examine the recent and rapid adoption of youth sports concussion laws as a lens to explore the limits of education based legislative intervention models. In less than 10 years, all 50 states adopted a youth sports concussion statute—and each law mandates concussion education for coaches and/or student athletes. This expansive, expensive intervention was designed to reduce concussion incidence and improve concussion care. But based on a review of 54 peer-reviewed studies, we argue that concussion education has not, and likely will not, produce the desired public health outcomes
Rations and Takings
No full textAndrew Coan's judicial capacity model explains many things about the pattern of U.S. Supreme Court opinions. Among other things, it perhaps inadvertently explains why the Court makes such wretched decisions about state and local government, particularly in connection with regulatory takings claims. As Coan explains, the Court defines these small-scale regulatory issues as "normal," not requiring anything more than sporadic intervention. But because it can dodge these issues, the Court never becomes familiar with them except in the most superficial way and has little incentive to come up with sensible solutions. Instead it episodically creates off-the-cuff categories that often disrupt state and local governance practices. This article will give a number of examples from takings cases, including several mentioned in Coan's book, e.g. the "physical invasion" and "total takings" categories, as well as the
Court's vexingly intrusive decisions about conditions on land use permitting. Together these decisions create confusion, ignore the patterns in which property rights normally evolve, and impede state and local efforts to deal with major environmental problems such as waste management and adaptation to climate change. Many of the Court's decisions also strongly hint at an underlying prejudice against state and local government
The Sentimental Constitution: Prostitution, Sex Work, and Human Trafficking in Colombia
No full textNothing generates as much discord and emotion as sex. No wonder Virginia Woolf once said, "when a subject is highly controversial-and any question about sex is that-one cannot hope to tell the truth."' This warning seems particularly poignant where the subject is one of the sexes selling sex particularly when those selling it are women. Nevertheless, the debate that has taken place in Europe and the United States in the last century over women's prostitution/sex work seems not to have heeded Woolf's call for argumentative caution when discussing the sexes (and sex). Those who talk about prostitution/sex work rarely recognize that "[o]ne can only show how one came to hold whatever opinion one does hold," or "[o]ne can only give one's audience the chance of drawing their own conclusions as they observe the limitations, the prejudices, the idiosyncrasies of the speaker." Quite the contrary, since at least the Victorian uproar over "white slavery" at the end of the nineteenth century, the legal, social, and political status of prostitution/sex work has ignited heated disputes among those who advocate for its prohibition (by criminalizing both the sale and purchase of sex), its one-sided criminalization (by criminalizing the purchase of sex but not its sale), its regulation (with labor, health, security, or zoning regulations, among others), or its complete decriminalization (treating sex trade as any other trade)
The New Legal World of Domestic Work
No full textDomestic workers, disproportionately foreign women, have long been accorded a place in our households, but not in our law. Nearly a century ago, the New Deal and Civil.Rights statutes excluded this female labor force from worker protections. More generally, migrant domestic workers around the world have often found themselves with little protection under national or international law. Yet a subtle shift has taken hold in recent decades, as domestic workers bring home the legal world around them
Introduction to Gun Violence in America
No full textIn the United States nearly 40,000 people die annually as a result of being shot by a firearm. Another 73,000 people experience firearm injuries — some so severe they are life altering. There is no question that deaths and injuries from firearms — what we will call gun violence — comprise a serious and important problem in this country. It is also evident that the United States has long resisted solutions to its gun violence epidemic. The reasons for the seeming intractability of our ability to staunch the flow of gun violence are varied. There is not just one gun violence problem in the United States, and there is no single solution.
From 2019-2020, members of the Yale University community, working with scholars, physicians, advocates and other experts from across the country sought to address the issue through the tools of interdisciplinary conversation and research. The twenty-seven articles that resulted, which comprise this issue, engaged three framework questions:
1. What exactly is America’s gun violence problem, and do the policy response fit the real causes?;
2. How is the criminal justice system, and its stakeholders, responding to gun violence?; and
3. How has the law conceived of the nature of gun violence and the constitutional issues concerning gun safety regulations
A Common Law of Choice of Law
No full textFor more than a generation, choice of law has been the victim of a historical contingency. The "conflicts revolution" of the mid-twentieth century and its legal realist leaders bundled together three concepts that, although all typifying the traditional approach, are not inherently connected: the "scientific formalism" of Bealean territorialism, attention to "system values" like uniformity and predictability, and judicial activism. The revolutionaries tied an anchor to formalism, sinking the regard for system values and judge-led decision-making in the process. This Essay argues that the rejection of system values and judicial lawmaking in the choice-of-law context was a mistake and it offers a means of reintegrating them into postrevolution choice-of-law thought.
Waving the flag of "legislative supremacy, " modern choice-of-law theory has asserted that standard techniques of statutory interpretation ought to be determinative of how courts resolve choice-of-law problems. However, the modernists have failed to grapple with what "interpretation" means in a context that is almost never contemplated by legislatures. In recent years,
those studying statutory interpretation have become increasingly sophisticated in their understandings of the ways in which courts use expansive sets of resources to counter difficult cases, leading to recognition of the "common law " of interpretation. But, so far, choice-of-law theorists have been left behind continuing to adhere to a primitive conception of statutory interpretation that shuns the role of the judge and the importance of broader goals, including the facilitation of system values. The Restatement (Third) of Conflict of Laws, currently being circulated in draft form, continues that error, wholeheartedly endorsing an outdated and unworkable mode of interest analysis.
This Essay offers a means of modernizing the modernists and rescuing the Restatement (Third) in the process. The key insight is to recognize that judicial creativity and attention to the facilitation of a workable system of choice of law is fully consistent with realism. Moreover, the principle of legislative supremacy is better protected by a methodology that does not mask metaphysical invention behind empty phrases like "interests" but instead recognizes explicitly the important yet limited role of the judiciary.
In line with these recommendations, this Essay advocates for the embrace of a "common law of choice of law " methodology, an approach that recognizes judicial, common-law rulemaking and that does not rely on sharp, fictive lines drawn between "interpreting" the law and developing system-oriented rules
Decolonization: Treaties, Resource Use, and Environmental Conservation
No full textSince the 1970s, Indian policy has been guided by a federal commitment to tribal self-governance. The exact contours of this policy differ, but at a minimum, it is supposed to guide the approach of the federal government in its relations to tribes. Where state and private interests collide with tribal interests, the role
of the federal government is often as a mediator of competing claims. In a sensitive and insightful piece, Professor Charles Wilkinson illustrates the way collaboration is supposed to work. He describes the process through which the tribes and the federal government negotiated the creation of what he calls "the first native national monument."I That description reflects what Professor Wilkinson believes is a turning point in the relationship among tribes, states, federal agencies, and private stakeholders in untangling the historically constituted web of interests that bedevil a fair adjustment of interests in land and resource management. U.S. colonial expansion into Indian Country meant that non-native expectations had priority in disputes over policy and law. The western movement was accompanied by presumptions about rightful claims to land and resources that are attendant to the American expression of settler colonialism. Professor Wilkinson illustrates that the physical landscape and the legal relations in which that landscape is embedded require careful attention to the mutual dependence of sacred relations and the more secularly denominated ecosystemic services. Co-management agreements can create a legal space where the various competing interests can be accommodated in a way that reduces the cost of conflict.
The congeries of legal sources available for directing any specific action complicates using law as a guide for refraining relations between the tribes and their prior antagonists. The sources of law range from treaties to foundational statutes like the Northwest Ordinance or the Non-Intercourse Act.3 As illustrated
by Professor Wilkinson, the Antiquities Act4 provided the legal foundation for the creation of Bears Ears National Monument, but it was the cooperation of the tribes, who shared a long and deep connection to the area, that proved essential for providing the substance necessary for the shaping of the monument.
These tribes included the Hopi, Zuni, Ute Mountain Ute, Uintah and Ouray Mountain Ute, and the Navajo nations, who together created the Inter-Tribal Coalition, which provided early leadership during the creation of the monument. The shaping was as much conceptual as physical. By combining the traditional
knowledge of the tribes with federal land management practices, the creation of the monument demonstrated how federal land and resource management in the West ought to proceed