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Critical Race Theory Bans and the Changing Canon: Cultural Appropriation in Narrative
Get PDFThirty-five states have enacted critical race theory (CRT) bans at the level of elementary and secondary public education, and eleven states have extended these to the university level. One way to resist these attempts to repress a healthy democracy by whitewashing history is through a pedagogy of anti-racism, including literary works. The question of what that would look like involves questions of cultural appropriation, which occurs when one takes from another culture, such as a writer creating a narrative about a character outside of the writer’s cultural identity. This Article considers the story of Ota Benga, brought from the Congo to the United States to be exhibited at the 1904 St. Louis World’s Fair as a pygmy, and in 1906 at the Bronx Zoo. In addition to discussing Benga’s physical appropriation for the purpose of demonstrating scientific views about the racial superiority of whites, this Article considers literature about Benga and the literary canon in general, in order to explore the complicated question of when does cultural appropriation harm the insider or marginalized community, such that the work should be deemed a failure or whether it can be recuperated. Literary works that succeed in depicting another culture are important and effective tools for a pedagogy of anti-racism because they offer empathic portrayals and social critiques of racism
Holding Aggressors Responsible for International Crimes: Implementing the Unequal Enforcement Doctrine
Get PDFIt is a fundamental tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party such as Russia — that illegally launches a war — benefits from all the same rights as a party such as Ukraine — that is forced to defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible because defenders should have more rights and fewer responsibilities than aggressors. Legal scholars continue to support the equal application doctrine, however, because they reasonably fear that applying different rules to different warring parties will dramatically undermine compliance with the international humanitarian law system as a whole. In previous work I have sought to bridge this divide by shifting the focus from the application of international humanitarian law rules to their enforcement. Specifically, I have advocated retaining the equal application doctrine but reducing its inherent unfairness by disproportionately prosecuting aggressors. To that end, I developed a doctrine that I call “the unequal enforcement doctrine.” This Article advances the doctrine in several key ways, but it makes two particularly significant contributions. First, the Article answers a series of core questions regarding the implementation of the unequal enforcement doctrine. Second, the Article applies the unequal enforcement doctrine retrospectively to prosecutorial decisions made in all of the International Criminal Court (“ICC”) situations that have progressed as far as trial. Doing so reveals that, although the ICC did not expressly consider the aggressor status of parties to the conflict when selecting cases, that status has likely been influencing prosecutorial decisions all along, sub silentio. Indeed, this Article’s analysis provides powerful support for my claim that “who started it” matters intuitively and profoundly and that the answer to that question has significantly impacted international criminal prosecutions
FOIA-Flooded Elections
Get PDFAfter the 2020 election, the United States has witnessed a crisis in confidence in election outcomes. The crisis has fueled massive public pressure on election offices to release election records via state \u27freedom of information act (FOIA) requests. This deluge of records requests places enormous strain on already overburdened and underfunded state and local election offices. Operating under strict statutory FOIA response deadlines, election officials spend hundreds of hours on records requests to the detriment of election preparedness potentially further exacerbating criticism of their offices. Making matters worse, election officials often lack guidance on which records may and may not be released; state records access laws often feature vague wording and spotty coverage. This compounds distrust and breeds litigation. The mandate that elections be transparent is sacrosanct. But so too is protecting a functioning democratic process. The justice system has processes in place to curb vexatious litigation and abusive discovery practices to ensure courts are not overrun. Should states adopt similar measures to protect elections? How can states stem FOIA flooding without diminishing the public\u27s right to transparent elections? FOIA-Flooded Elections takes up these questions, offering concrete paths to protecting both efficient election administration and public confidence in election outcomes
Principles of Prosecutor Lenience
Get PDF[T]here are profound questions about the when and why of lenience, and particularly prosecutor lenience. The answers speak to one of the great mysteries of American criminal law: the role of the prosecutor. I have taken on this mystery in recent years and continue the effort here by offering a skeletal framework for prosecutor leniency. The framework proposes three principles of prosecutor lenience. Prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant.
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This Symposium Essay explores prosecutorial lenience through the lens set out above. Part I defines prosecutorial lenience and proposes three principles to guide its exercise. Part II applies the principles to common prosecutorial lenience scenarios like insufficient evidence, justice-based lenience, transactional lenience, triage, nullification, and mercy. The analysis is necessarily incomplete and tentative. But it reveals that some forms of prosecutorial lenience are more easily justified than others and offers a rough outline for exercising lenience within each category. Part III highlights the dilemma that, in some circumstances, the principles conflict. Specifically, insisting on the first two principles may jeopardize the third. This means that prosecutors, and their critics, will have to consider not just the overall desirability of lenience, but tradeoffs between the quality of prosecutorial lenience and its quantity.
This abstract has been taken from the author\u27s introduction
Understanding \u3cem\u3e303 Creative LLC\u3c/em\u3e in a Polycentric Constitutional World
Get PDFThe evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.
The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the law focus on the unique nature of the product being sold, the unique nature of same-sex weddings, or simply the product being characterized as expressive commerce? And third, how far ranging will 303 Creative LLC’s free speech protections truly be? Will those with deeply held racial or national origin convictions be permitted to raise similar objections under the First Amendment? Or is same-sex marriage sui generis such that society, and our courts, will accept same-sex couples being relegated to a second-class status in the public marketplace, particularly when it comes to same-sex weddings?
This abstract has been taken from the author\u27s introduction
Mothers with Disabilities in the Workplace Post-Pandemic & Post-\u3cem\u3eDobbs\u3c/em\u3e
Get PDFBetween when I wrote Mothers with Disabilities and Fall 2023, two major developments have occurred that justify revisiting this topic. The first is the COVID-19 pandemic, which dramatically changed all aspects of our work lives and home lives. The second is the Supreme Court’s landmark decision in 2022, Dobbs v. Jackson Women’s Health Organization, which overturned a woman’s constitutional right to have an abortion. Both of these developments have unique, sometimes conflicting effects on mothers with disabilities.
Accordingly, this Article explores the workplace effects of the pandemic and the Dobbs decision on mothers with disabilities. Drawing on my prior work, Part II describes the workplace experience of mothers with disabilities. Part III explores how the pandemic affected mothers with disabilities and speculates about these effects going forward. Part IV discusses the possible effects from the Dobbs decision—including how the drastically diminished right to an abortion will affect women with disabilities both in general and in the workplace specifically. Finally, Part V attempts to end on a positive note—how we might find the silver lining from the clouds of the pandemic and the Dobbs decision.
This abstract has been taken from the author\u27s introduction
Tarnished Gold: The Endangered Species Act at 50
No full textThis Article aims to take stock of the [Endangered Species Act] ESA’s success and failures during its first fifty years, particularly with regard to the conservation of species habitat on private land. While the ESA authorizes powerful regulatory tools for species conservation, there are serious questions as to whether such tools are the most effective means of conserving species and the habitats on which they rely. Given that most species rely upon private land for their survival, the ESA’s ability to foster private land conservation will affect the law’s overall success.
This abstract has been taken from the author\u27s introduction
Regulation by (Bad) Proxy: How Selective Application of Transaction Cost Economics Tainted the FTC\u27s Proposed Ban of Employee Noncompete Agreements
No full textAgencies have imperfect information about conduct they regulate. This problem is particularly acute when identical conduct has differing effects in various markets. Determining the economy-wide impact of such conduct can be difficult or impossible.
The FTC faces such a challenge. The Commission has announced a rule banning the nation’s 30 million employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the FTC Act. The Commission determined that NCAs likely reduce aggregate wages, helping to establish a presumptive violation. The Commission also found that nearly all NCAs are both procedurally coercive—because employers use overwhelming bargaining power to impose them—and substantively coercive—because they restrict employees from starting new firms or accepting offers from rival employers. The Commission also implied that procedural coercion was a necessary condition for substantive coercion.
The Commission then assessed possible business justifications. Echoing Transaction Cost Economics (“TCE”), the Commission concluded that NCAs sometimes produce cognizable benefits, increasing productivity and product quality. The Commission framed the inquiry as assessing whether, “overall,” NCAs’ harms exceed benefits. The Notice of Proposed Rulemaking subjected justifications to a “high bar,” given its finding that nearly all NCAs are doubly coercive.
Determining the overall impact of 30 million contracts is a daunting task. The Commission employed a creative proxy, however. The Commission hypothesized that employers would share benefits of NCAs by paying premium wages to employees with such agreements. However, most studies find a negative correlation between state-level enforceability of NCAs and wages, implying that harms exceed benefits. The Commission, therefore, rejected justifications and indiscriminately condemned all NCAs.
This proxy seems sound and consistent with TCE. Wages impound vast data generated by innumerable decisions. Resulting wages should reflect benefits employers expect from NCAs as well as the harms resulting from their restrictive impact. This proxy would seemingly generate an economical assessment of the net impact of NCAs.
This essay critiques this proxy and rejection of business justifications. The essay contends that the proxy may produce misleading results reflecting selective application of TCE’s model of contract formation. For instance, the proxy could produce false negatives. A positive correlation between enforceability and wages is consistent with two conclusions: (1) NCAs produce net benefits or (2) most raise rivals’ costs and injure consumers. Absent additional information, both hypotheses would be equally plausible. Immunizing conduct because of a positive correlation between enforceability and wages risks entrenching harmful agreements.
Invocation of a negative correlation between enforceability and wages risks false positives. Markets are not pre-legal entities that generate immutable results. Background rules impact transaction costs and resulting market activity. The Commission implied that transaction costs prevent employees from learning of NCAs before accepting offers and assumed that courts enforce NCAs regardless of precontractual knowledge. These two aspects of the institutional framework will prevent employees from receiving wage premia to compensate for NCAs. Wages will not impound the benefits of NCAs, and condemnation because of a negative correlation between enforceability and wages may produce a false positive.
The prediction that a wage-based proxy can produce false positives assumes that Section 5 is indifferent between whether employers or employees capture the benefits of NCAs. If, however, benefits must offset harms that NCAs impose on employees, the wage-based proxy will produce no false positives. Unfortunately, the Commission did not address whether Section 5 requires such sharing.
Even if business justifications fail, blunt condemnation of NCAs is not the only remedy that can enhance employee welfare. The Commission rejected an alternative derived from TCE, namely, banning NCAs not disclosed in advance. TCE teaches that this change to the institutional framework would reduce transaction costs and induce employers to pay premium wages to employees bound by NCAs, thereby sharing the benefits of such agreements. These higher wages would also force employers to internalize the impact of NCAs on employees. Some employers would abandon NCAs, and some others would narrow their scope. Both effects would reduce the restrictive impact of NCAs, and mitigate NCAs’ negative impact on wages, weakening the Commission’s prima facie case against such agreements.
Moreover, fully disclosed NCAs that produce net benefits or raise rivals’ costs are voluntary. Thus, neither category of agreement is procedurally nor substantively coercive. Mandatory disclosure would thus reduce the proportion of NCAs that are coercive in either sense, further weakening the Commission’s prima facie case.
Despite mandatory disclosure, NCAs’ harms may still exceed the benefits that employers share with employees. However, the Commission could not apply a “high bar” to efforts to justify all nonexecutive NCAs and would instead have to estimate how many such agreements are voluntary, lowering the bar for those that are. The combination of a weakened prima facie case, lower bar for some NCAs, and increased sharing of benefits could well alter the outcome of a comparison of NCAs’ costs and benefits.
Indeed, the Commission need not guess about the impact of changing the institutional framework. Such a change could itself inform empirical tests that would determine whether the benefits of NCAs realized by employees exceed harms in well-functioning labor markets. In such markets, wages would be a more accurate proxy for the overall impact of NCAs. The result could be a conclusion that, “overall,” NCAs produce more benefits than harms and that employers share a sufficient portion of such benefits with employees such that NCAs improve employee welfare compared to a regime that indiscriminately bans such agreements