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The Road to Hell is Paved with Good Intentions: Deinstitutionalization and Mass Incarceration Nation
Get PDFThey say that the road to hell is paved with good intentions, and our failed implementation of deinstitutionalization in the 1970s is a prime example of the point. In this symposium contribution—a response to Jeffrey Bellin’s book Mass Incarceration Nation—I offer a historical account of deinstitutionalization of state mental hospitals, tracing how severely mentally ill patients were discharged from state hospitals and eventually made their way back to secure beds, but in our nation’s jails and prisons instead. Mental health and mass incarceration are not separate crises, I argue, but rather interconnected problems with an interconnected past that require an interconnected solution. The lessons of deinstitutionalization’s failures can inform how our decarceration story plays out, offering an opportunity to avoid the mistakes of our past and move toward a more just, humane, and equitable future—a future that takes the “mass” out of mass incarceration
Ukraine v. Russia: A Case for Change in International Enforcement
Get PDFA scant few territorial violations have occurred in the twentieth and twenty-first centuries, and those that have occurred generally prompted quick and unequivocal condemnation, as well as efforts to return to the status quo. Notable violations—the Six-Days War, the Turkish invasion of Cyprus, the Falklands War, Iraq’s invasion of Kuwait, and Russia’s annexation of Crimea—have prompted a short menu of international responses. The Six-Days War and the invasion of Crimea both prompted years’ worth of political criticism for Israel and Russia, respectively, as both nations have held onto at least parts of the lands seized. The Falklands War prompted almost immediate diplomatic condemnation and efforts to negotiate a peace settlement, but was resolved with military force beyond the control of the international community. Iraq’s invasion of Kuwait and Turkey’s invasion of Cyprus also prompted virtually unanimous condemnation and economic and diplomatic sanctions, as well as military intervention.
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These violations of territorial integrity highlight pervasive concerns regarding the enforceability of international law. This Note will explore this question by examining the events unfolding in Ukraine, categorizing Russia’s actions thus far, and assessing the potential mechanisms that might be brought to bear. Part I will overview the recent history of Russia’s involvement in Ukraine. Part II will discuss the presently-available international enforcement mechanisms and their general ineffectiveness. Part III will discuss how the broad ineffectiveness of international law is best expressed in the structure and practice of the U.N. Security Council. Finally, Part IV will offer recommendations for the improvement of current enforcement structures.
This abstract has been taken from the author\u27s introduction
Harmonizing Freedom of Speech and Free Exercise of Religion
Get PDF[...]The close relationship between the free exercise of religion and the freedom of speech points to the sensible assumption that they should receive similar interpretation when dealing with parallel types of problems, or at least that differences in interpretation should be carefully justified.
With this premise, this Article compares freedom of speech and free exercise jurisprudence in various parallel applications, with the suggestion of harmonizing them more closely. While other commentators have compared freedom of speech and free exercise case law with a narrower focus (most commonly, focusing on the incidental burdens issue presented in [Employment Division v. Smith]), I consider here multiple ways in which free exercise and free speech standards of protection differ, or where some have argued that they differ. These include the treatment of incidental burdens, underinclusive regulations, regulations that allow individualized exemptions, freedom of association, regulations that compel behavior, and conditions on public employment. In addition, I consider the overlapping protection these freedoms provide for religious expression, and what the Court’s apparent preference for using speech jurisprudence here signifies.
This abstract has been taken from the author\u27s introduction
Eavesdropping, the Fourth Amendment, and the Common Law (of Eavesdropping)
Get PDFThis Article addresses two of the most momentous and controversial issues raised by the Fourth Amendment. These issues are closely related but distinct. First, is eavesdropping a “search” subject to the Fourth Amendment? Second, are Fourth Amendment “searches” limited to the interests against physical intrusion protected by the common-law torts of trespass and false arrest?
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Remarkably, the debate about the Fourth Amendment, the common law, and eavesdropping has almost completely ignored the common law of eavesdropping. This Article is the first to consider the Fourth Amendment in light of an in-depth examination of the common law’s prohibition of eavesdropping as a public nuisance. The evidence presented here shows that the prohibition of eavesdropping was an integral part of the common law’s protections for the security of the home. Insofar as the Fourth Amendment incorporates Founding-era common-law protections for the security of the home, those protections were not limited to physical invasions.
This abstract has been taken from the author\u27s introduction
Unreasonable Traffic Stops
Get PDFIn 1996, the Supreme Court announced in Whren v. United States that a traffic stop is constitutional if there is probable cause to believe a traffic infraction has occurred. So long as the officers who stop an individual can point—even after the fact—to any violation of the traffic laws, their actual, subjective motivations for initiating a stop are legally irrelevant. Case-by-case determination of reasonableness is unnecessary in the traffic stop context, the Court concluded, because the balancing of interests has already been done. Unlike warrantless entries into homes, the use of deadly force, or unannounced warranted entries, a traffic stop is not an “extreme practice,” and therefore the existence of probable cause invariably outweighs an individual’s interest in avoiding police contact.
In this Article, I argue that the Court was half right in Whren: there is little need for case-by-case adjudication of the reasonableness of traffic stops. Given that the government interest in these stops is relatively low, that such stops can result in harm to both the officer and those stopped, and that other, less intrusive means are nearly always available to serve the government’s stated interest in traffic enforcement, courts should presume that the use of sworn officers to conduct traffic stops is unreasonable. While there may be some situations in which the use of armed police officers to make traffic stops is reasonable, the government should bear the burden of demonstrating that fact in each individual case. This straightforward legal change would significantly reduce needless police stops, thereby increasing overall safety for both officers and the public
Pricing, Decarbonization, and Green New Deals
Get PDFThis Article evaluates an emerging literature claiming that carbon pricing (emissions trading or carbon taxes) has not performed very well and therefore cannot be the basis for the sort of transformative change now required to address the climate crisis. This is an important claim, as carbon pricing has been viewed as being at the heart of global efforts to address one of our most important contemporary problems.
We provide theoretical and empirical support for these critics’ claim that carbon pricing by itself cannot catalyze the technological transformation now required, and that other approaches have done and will likely do better. We also agree with critics that pricing approaches have suffered from insufficient ambition and effectiveness in routine emission reductions. But we do not think that the critics have shown that alternative approaches have and will perform better in those terms. We develop a framework for enhancing empirical evaluation of past programs, as we now have a wealth of experience with both carbon pricing and a variety of alternatives, but a dearth of econometric comparative studies of past performance.
We also explore the normative implications of the critics’ claims. We argue that even if they are entirely right, we should welcome even insufficiently ambitious pollution taxes as likely to enhance other programs and raise revenue to support them. We point out, however, that the trading programs now common around the world may undermine rather than support more successful programs and suggest that regulators consider cap-without-trade (imposing mass-based caps on pollution sources without allowing the trading of obligations) as an alternative. We also discuss the possibility of overcoming the critics’ objections by improving carbon pricing programs
Dark Oro y Plata in Montana: The Green Amendment\u27s Defense of Campaign Finance Transparency
Get PDFIn the post–Citizens United dark money age, state disclosure regulations are the last line of defense for citizens to learn who is behind unlimited independent expenditures and electioneering communications flooding their states. Underpinning the ability of state governments to promulgate such transparency measures are the informational benefits provided to the public. However, the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta to invalidate a California disclosure regulation on dark money groups, marks disclosure regulations—the Court’s repeated fallback when striking down more robust campaign finance regulations—with a bull’s-eye. In the face of repeated legal challenges to disclosure regulations, advocates for transparency should conceptualize the scope of the informational interest more broadly to encompass not only the interests of voters, but also the interests of states in upholding state constitutional rights dependent on disclosure information. States like Montana, which have affirmative duties under their constitutions to protect the right to a clean and healthful environment, also known as “green amendments,” have a compelling interest in upholding disclosure provisions because such protection hinges on the information provided by campaign finance disclosures
An Emergency Brake for the Age of Instantaneous Bank Runs
Get PDFBusinesses missing payroll because some bank executives made wrong bets about interest rates is the seed of contagion that financial regulation aims to prevent. Yet, exactly that happened when Silicon Valley Bank failed in March of 2023. Future bank runs will be faster and larger. This Article proposes a regime that would prevent bank runs from hurting the nonfinancial economy. A bank experiencing a run should be allowed to delay withdrawal requests until next Monday (after its run will have been addressed by management or regulators). Exceptions should include payroll, deal closings, and individuals’ payments under the insured limit. By letting those transactions proceed, contagion would be averted, while the delay would give management and regulators the time to address bank failures