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Race-Based Remedies in Criminal Law
Get PDFThis Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize that these conditions undermine perceptions of legitimacy critical to ensuring public safety. As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions. Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge. The apprehension is understandable. Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.
This Article, however, contends that within the criminal system, strict scrutiny requirements do not pose an insurmountable obstacle to race-based policies. There is promising decisional law surrounding the use of race-conscious efforts to address criminal system challenges. Drawing on this favorable doctrine, this Article tests the constitutionality of race-based remedies in one of the most dynamic areas in the criminal system: the use of risk assessment tools, which jurisdictions are increasingly relying upon to make decisions, even as these tools reproduce racial harms. To enrich the analysis, this Article presents a case study of a jurisdiction struggling to mitigate racial harms perpetuated by its pretrial risk assessment tool.
This Article finds reasons to be optimistic about how race-based remedies might fare within the criminal system context, where courts are predisposed to granting broad discretion to the stated needs of criminal law stakeholders. Within this unique context, this Article provides a template for a race-based approach that potentially survives an equal protection challenge
Professional Medical Judgment and Pharmaceutical Marketing: Drawing Legal and Ethical Lines Around Conflict of Interest
Get PDFPharmaceutical manufacturers develop relationships with healthcare providers for several purposes, including the marketing and sale of their products. Professional associations give guidance to physicians and companies for managing these relationships ethically. Some practices permitted by these associations entail conflicts of interest. This Article explores two of these practices: (i) company funding of external educational seminars, conferences, and continuing medical education; and (ii) company-hosted speaker programs. The conflict of interest concerns raised by the former practice are manageable, and the practice should continue to be permitted subject to appropriate safeguards; however, the conflict of interest concerns raised by the latter practice create an unacceptable ethical hazard that cannot be managed. Company-hosted speaker programs should be prohibited
Second Amendment Background Principles and Heller\u27s Sensitive Places
Get PDFJudges and commentators have widely acknowledge that history enjoys a privileged status in Second Amendment cases, but its precise role is undertheorized and rarely controls case outcomes. In particular, courts have been unable to decide sensitive places cases-- challenges to location-based gun laws-- in a manner that adheres to Supreme Court precedent because existing Second Amendment doctrine lacks a test for sensitive places cases that uses history and tradition in a principled way. This Article proposes a solution to address that problem.
An untapped source of guidance is the Court\u27s takings jurisprudence. Interpreting their respective constitutional provisions, Justice Scalia observed that both property rights and the right to keep and bear arms are fundamental rights that prefigure ratification. Specifically, Scalia observed, both the Second Amendment and the Takings Clause rely upon bright-line rules subject to a location-based exception, require the use of history and tradition in the respective analyses, and deal with property interests. In several important cases-- including Heller and McDonald-- the Court has indicated that the right to keep and bear arms is animated by property-like principles. This suggests the Court\u27s well-established takings jurisprudence is a more germane source to inform its less-developed sensitive places doctrine than the sources scholars and judges currently look to, such as free speech doctrine.
This Article explores what the Court\u27s takings jurisprudence can teach us about the constitutionality of location-based gun laws. I propose a framework for courts to analyze sensitive places cases by borrowing from doctrine that is more familiar to courts, but similarly governs a pre-constitutional individual right. My examination of the Court\u27s takings doctrine indicates that the role of history and tradition in analyzing a fundamental right, like the right to keep and bear arms, is more elastic than many assume-- but that history and tradition should play a larger role than it currently does
Hey, Hey! Ho, Ho! These Mass Arrests Have Got to Go! : The Expressive Fourth Amendment Argument
Get PDFThe racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment protections, as conceived by its Framers. The first part of this Essay provides an account of mass arrests during the George Floyd protests in Los Angeles, the city with the largest number of reported arrests in the initial demonstrations. The second part of this Essay begins by briefly reviewing the Expressive Fourth Amendment, a doctrine the author previously introduced, which posits that the Framers designed the Fourth Amendment to protect freedom of expression, in addition to the prevailing understanding of its safeguard of bodily integrity. The Expressive Fourth Amendment shields from government overreach individuals engaged in political expressive conduct. Here, this Essay expands upon this doctrine by querying how this protection should apply to mass arrests during protests and ultimately concludes that courts should demand both that a police officer establish probable cause for each protester swept up in a mass arrest and that judges positively weigh an individual’s expressive conduct when determining whether an arrest was reasonable in the totality of the circumstances
Making the Impractical, Practical: A Modest and Overdue Approach to Reforming Fourth Amendment Consent Search Doctrine
Get PDFAt some point in your life, you may have a personal encounter with a police officer. During that moment, you may feel utterly powerless, especially if you do not know your rights. One important right that police are not required to inform people of is their right to deny an officer’s request to search their property. Forty-eight years ago, the Supreme Court made its position clear in Schneckloth v. Bustamonte that requiring law enforcement to provide citizens with this warning would be “thoroughly impractical.” Since then, the relationship between law enforcement and society—especially communities of color—has gradually deteriorated, and states have slowly turned away from Schneckloth’s rationale. As such, this Note revisits Schneckloth and takes a closer look at the inconsistencies within the Court’s current consent search doctrine. This Note also explores the Court’s problematic and unrealistic “totality of the circumstances” approach and the realities of consenting as a person of color. Ultimately, this Note proposes that all states adopt a modest approach to consent searches by requiring all police officers to provide warnings before requesting consent
Why the Congressional Review Act Should be Repealed
Get PDFThe Congressional Review Act (“CRA”) is a procedure that allows the political branches to quickly repeal certain regulations promulgated by administrative agencies without going through the arduous rule-making process traditionally required. Although it had been successfully used only once before 2017, President Trump and Republicans in Congress used the CRA to repeal sixteen regulations in 2017 and 2018 while President Biden and Democrats in Congress used the CRA three times in 2021. Because the CRA has been used rarely, and its central provisions are barely adjudicated in the judiciary, there are interesting legal questions about how expansively the law may be used.
Whatever the legal uncertainties, the CRA degrades the federal regulatory system generally, and it has undermined environmental regulatory governance in particular. Using environmental regulation as a prism, this Note argues that Congress should repeal the CRA. If framed properly, repealing the CRA could be seen as supporting the interests of both environmentalists and business interests as the nation confronts climate change. In that vein, Part I of this Note provides a background of the CRA, including its mechanics and history. Part II of this Note argues that the CRA should be repealed for three main reasons. First, the CRA was poorly drafted and its future use will likely cause negative unintended consequences on the environment that may well take years to manifest. Environmentalists have better tools at their disposal to achieve their regulatory goals. Additionally, this Note argues that the CRA creates uncertainty for stakeholders, including both environmentalists and corporate interests, while simultaneously making it difficult for any administration to create long-term impactful policies to address controversial issues. Finally, the CRA has the potential to artificially stymie future legislation, specifically impairing support for environmental bills
Redistricting Transparency & Litigation
Get PDFLegislative redistricting following the 2010 Census kicked up a deluge of litigation. It did not abate. In several states, redistricting litigation extended throughout the decade, costing taxpayers millions. Factors leading plaintiffs to challenge legislative lines are multifaceted; the reasons redistricting litigation flares (and persists) are complex. One underexamined question is the extent to which process fairness in redistricting impacted redistricting litigation after the 2010 Census. At least in theory, a transparent redistricting process should produce fairer maps less likely to be challenged in court. But fights over maps result from myriad sources--the raw quest for political power, the availability of legal remedies, and other dynamics that process fairness may be powerless against. Still, a review of litigation spanning the last decade reveals that the degree of process transparency did matter in revealing ways, often figuring prominently in judicial assessments of maps. Examining the nexus between transparency and redistricting litigation after the 2010 round provides important insights for line drawers hoping to avoid (or at least improve their chances in) court