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A (LOPER) BRIGHT FUTURE?: HOW THE SUPREME COURT OPENED A PATH FOR DRUG REFORM
Full text linkWe are witnessing a sweeping transformation of administrative law. The Supreme Court has taken aim at what it believes is a constitutional error: the power of the administrative state. All parts of the so-called “fourth branch of government” are undergoing shifts in the legal doctrines governing their structure. For those in favor of a strong administrative state, most of the Court’s new approach to agency action may represent a sinister effort to prevent the making of disfavored policy by the Executive. However, advocates of agency power would do well to remember that the administrative state can be oppressive. No agency may better represent how the “fourth branch” can harm disadvantaged populations than the Drug Enforcement Administration and its harsh regulation and punishment of psychoactive substance use in the United States. The Biden Administration decided to reevaluate the DEA’s approach to the regulation of marijuana, but the problem runs deeper than any one substance, and the Biden Administration’s efforts could easily be reversed. The Court’s remaking of administrative law offers a more permanent solution. This revolution in administrative law comes at a time when constitutional challenges to the war on drugs are unlikely to succeed. The current Supreme Court is unlikely to rule in favor of plaintiffs bringing innovative constitutional challenges to the current drug regime using the Equal Protection Clause, Free Speech Clause, or a newly unearthed freedom-of-thought. Religious liberty claims offer a promising alternative but are unlikely to provide the widespread reform that is needed. The right to use drugs is unlikely to be “deeply rooted in tradition and history” in a way the current makeup of the Court would recognize. If there is any judicial path to weakening the current drug regime, the best way forward appears to be through administrative law
THE MODEL MINORITY VICTIM
Full text linkThe rise in xenophobia, hate and violence against AAPI Americans inspired by the COVID-19 pandemic was an opportunity to assess the effectiveness of the criminal legal system as a tool of anti-racism. This Article traces the legal aftermath when Asian New Yorkers reported 276 possible hate crimes to the police in 2021. The analysis takes an empirical approach and a narrative approach. It relies on a unique database that followed what happened to civilian complaints of anti- Asian crimes from beginning to end. Using metrics such as arrest rates and conviction rates, the Article draws initial conclusions about the systemic legal response. The Article also features the experiences of survivors and prosecutors. Their narratives add important dimensions.
The Article is an important contribution to anti-racism scholarship. It departs from the usual black-white binary and studies how victims, communities, police officers, prosecutors and politicians contended with racist violence directed at America’s model minority. More than forty years after the 1983 killing of Vincent Chin in a Detroit suburb, the construction of AAPI Americans as the model minority persists. Numerous legal actors continue to insist that AAPI victims are seen, understood and behave as model minorities. To their detriment, this entrenched construct ended up defining the experience of some Asian New Yorkers as crime victims.
The Article is also an effort to re-examine hate crime laws. The country is deeply mired in an age of divisiveness, hate and rampant violence. Despite the loud voices of abolitionists, criminal law remains an important resource and perhaps is even more so in hate crimes.
Repeatedly, the complaints of Asian New Yorkers ran into the outdated conservatism of New York’s statutes and the related practices of police and prosecutors. Now is a critical time to consider possible reforms. Examining that question through the recent experiences of AAPI Americans is necessary and valuable.
Alongside the deep suffering caused by COVID and the racist violence it inspired, Asian New Yorkers had to take to the streets, to social media and to other means to advocate for attention and resources and to receive what is due to all Americans—a fair, just and meaningful criminal legal system. This Article hopes that by documenting their suffering and their experiences as crime victims through empirical and anecdotal evidence, we will ultimately improve the response to hate and violence for all Americans
HIGH VALUE TRANSNATIONAL ADHESION CONTRACTS: AGREEMENTS WITH SPORT GOVERNING BODIES AND THEIR FUNDAMENTAL DEFECTS
No full textAthletes are bound not simply on the basis of their individual agreement with their club, but also by a variety of rules and regulations imposed by national and international sport governing bodies (SGB or SGBs). These rules and regulations become part of the original agreement as part of the obligations of the club towards these entities. The athlete’s acceptance of the myriad of rules and regulations is simply notional, given their complexity even for legal experts. Even so, this type of sporting agreement does not possess the attributes of adhesion contracts that protect the weaker party through a variety of contractual guarantees. The absence of a common intention is a distinctive feature of these agreements. While claims by athletes are not common, this does not suggest that pertinent qualms do not exist in practice. In many cases, the lack of constitutional and human rights guarantees and access to effective justice in these contracts culminates in the restraint of trade. While such an outcome would render the contract illegal or unenforceable under domestic laws, this is not the case with sporting contracts before the Court of Arbitration for Sport (CAS). Sport contracts are not grounded in modern notions of contract law because of their paternalistic and unilateral nature, in the sense that one of the parties unilaterally decides on matters that ordinarily require the consent of both parties. In dissecting the anatomy of these agreements, it is wise not to subject them to the regime of private law at all. A better way of looking at them should be through the lens of formal regulation, albeit the remedies typically associated with legal action against administrative authorities are missing
YOUR DATA, MODERN TIMES, AND THE FOURTH AMENDMENT: WHAT WOULD JEFFERSON AND ORWELL DO?
Full text linkThe ongoing challenge of balancing individual data privacy with the government\u27s need for user data through national security efforts has long plagued courts and policymakers. This tension intensifies as technology advances, permeating daily life, and global uncertainty fuels government demand for additional data. This study explores this tension by examining the Fourth Amendment\u27s protection against unreasonable searches and seizures in the context of user data obtained by the government through third-party providers. I argue that the Fourth Amendment provides a sufficient framework to balance these competing interests. While acknowledging the government\u27s responsibility for national security, we contend that this does not automatically override individual privacy concerns. However, the legality of the government purchasing third-party user data – data voluntarily provided by users to private companies – remains a critical question. Drawing on relevant case law, including United States v. Jones, this study analyzes the evolving legal landscape regarding user data and government surveillance. I conclude by calling for further discussion on the legality of government access to third-party data and exploring potential solutions within the existing framework