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Safeguarding Prison Art Through Outgoing Correspondence Rights
Full text linkIncarcerated people are increasingly turning toward art as a creative outlet. Many incarcerated artists seek to mail their art to relatives, friends, or organizations that display or sell their art to the public. Prisons have responded to this trend with myriad regulations on prisoners’ transmission of art. This comment assesses First Amendment protections for prisoners’ mailed transmission of art to the outside world. Although the Supreme Court has granted prison administrators significant deference for restrictions on prisoners’ speech, there is doctrinal support for heightened scrutiny of regulations on prisoners’ correspondence to the outside world. Procedural barriers to incarcerated people’s vindication of rights and the conceptual similarities between artistic speech and religious speech also justify the need for more probing judicial review into regulations on prisoners’ artistic correspondence
Voting Patterns and Diversity of Backgrounds in the United Nations Human Rights Committee
Full text linkIt is widely recognized that the decisions of judges are influenced to some extent by their backgrounds. In recent years this understanding gained traction in the international legal system, and there is an attempt to diversify the composition of international judicial institutions. This article explores empirically the question of whether the status of specific human rights in the home country of a judicial decision-maker influences their voting patterns in an international judicial institution. For instance, whether a decision-maker which comes from a country that promotes women’s rights would be more (or less) likely to promote women’s rights through his professional role in the international sphere? Or perhaps the opposite should be expected, and a decision-maker coming from a country with a problematic women’s rights record would be the one more willing to promote this right in the international sphere?
As a case study, I use United Nations Human Rights Committee (“HRC”). The HRC is the monitoring treaty body of the International Covenant on Civil and Political Rights, which is one of the most important and highly regarded international human rights institutions. In order to test my hypothesis, I conduct a quantitative-empirical analysis of an original hand-coded dataset of the decisions of the HRC. In general, I find no strong evidence that the status of the rights in the committee member’s (“CM”) countries influences his or her voting patterns on those rights. However, the most noticeable exception to this is that CMs from Organization for Economic Cooperation and Development (“OECD”) countries are more likely to vote in favor of countries in immigration and asylum cases. Also, CMs from OECD countries are more likely to vote in general in favor of countries. This might indicate that at times, the votes of CMs are influenced by their own life experience and perhaps reflect their roles as agents protecting the interests of their countries
International Legal Ordering to Achieve International Goals: A Discourse Through the U.S. and China\u27s Foreign Relations Law
Full text linkThe international legal order is facing both short-term and long-term challenges. The U.S. and China, as two leading economies in the world, have responsibilities and interests to take the initiatives in addressing these shared challenges, be it international security, extreme poverty, global sustainability, and connectivity, or disruptive technologies. As Foreign Relations Laws inform how nations interact with the world, how the U.S. and China’s Foreign Relations Laws facilitate the development of the international legal order calls for analysis. This paper proposes the formulation of indicia with three-pronged evaluative criteria, to consider both China’s newly introduced Foreign Relations Law 2023, as well as the more long- standing U.S. foreign relations framework. This is done against the backdrop of a comparative approach to evaluating both the U.S. and China’s constitutional and institutional structure of foreign relations and decision-making processes. This paper provides scholars, practitioners, and policy makers with analytical insights into how States, through their Foreign Relations Laws, can facilitate the development of the international legal order for the benefit of mankind
Erasing Slavery: The Uses and Misuses of the History of Slavery and Reconstruction in Constitutional Interpretation
No full textThis Essay takes as its jumping-off point Jack Balkin’s claim that judicial decisions both rely on constitutional memory and produce constitutional memory. It discusses the efforts of politicians and judges in the United States, from the moment of emancipation to the present, to erase the memory of slavery from the history of the Constitution. By putting slavery in the deep past, and portraying freedom as a gift from white people to Black people, opponents of Black rights promoted a nationwide retreat from the promise of citizenship and equality in the Reconstruction Amendments. Likewise, today’s Supreme Court majority has adopted a version of history promulgated by radical movement conservatives in which slavery ended with finality in 1865, the debt for slavery was paid with the Civil War, and slavery is decoupled from race so that racial inequality no longer appears to be tied to the legacy of slavery
Series LLCS: Statutory Ambiguities, Potential Litigation, and Proposed Clarifications
No full textA series limited liability company (LLC) consists of multiple subunits—called series—within an otherwise-normal LLC. Series LLCs exist so that one LLC may do the regulatory compliance and/or asset- segregation work of many, with the possible side benefit of lower administrative costs.
This article, which focuses on Delaware and Texas law, (1) describes three ambiguities that exist in many series LLC statutes that (like Texas) are based largely on the Delaware statute; (2) explains the correct resolution of those ambiguities in light of the structure and purpose of series LLCs; and (3) proposes new statutory language to clarify that these are the correct outcomes.
The notion of a “series,” essentially an internal compartment of a limited liability company (LLC) . . . that . . . has some of the attributes of a legal entity, has of late caused significant confusion.
—Preeminent corporate lawyer Thomas E. Rutledg
Examining equity-related eligibility criteria in clinical trials supporting 2022 US drug approvals
No full textThere has been substantial recent attention to the importance of diversity in clinical trials supporting US Food and Drug Administration (FDA) drug approvals, including both Congressional action and FDA guidance. One factor that can contribute to a lack of diverse enrollment is overly strict eligibility criteria not supported by scientific or safety considerations. The aim of this study was to examine equity-related eligibility criteria in pivotal trials supporting all new molecular entities and therapeutic biologics approved by FDA’s Center for Drug Evaluation and Research in 2022. We qualitatively coded these criteria, using a codebook developed through inductive and deductive methods. The codebook consisted of categories relevant to equitable inclusion across race, ethnicity, socioeconomic status, pregnancy, disability, and age; explanations of the potential relevance to equity, as well as potential scientific and regulatory justifications. We found that adolescents, pregnant/lactating individuals, and individuals with limited literacy were most commonly excluded and that about 1 trial in 5 excluded individuals based on weight/obesity, had general exclusions for hepatitis, or excluded adults aged 80 and up. Ultimately, our results indicate that several common eligibility criteria are likely to negatively influence equitable inclusion, especially based on age, pregnancy/lactation, and characteristics associated with race, ethnicity, and socioeconomic status. To minimize unnecessary equity-related exclusions, eligibility should focus on specific issues expected to influence safety or efficacy (e.g., liver function, drug interaction, uncontrolled comorbid disease), rather than blanket exclusion based on broad diagnoses or characteristics. Investigators, sponsors, institutional review boards, and regulators should scrutinize eligibility criteria with equity in mind
Critical Constitutional Law and the Alito Palimpsest
No full textThis article uses an innovative metaphor—the palimpsest—and a provocative philosophical tradition—genealogy—to generate a new theory of critical constitutional law. It is a theory born from this unique moment in time.
Originalism is now ascendant at the Supreme Court. Its search for essential origins in history as a method for grounding extant constitutional values was used in Dobbs v. Jackson Women’s Health Organization to end recognition of the fundamental right to abortion. The Court’s conservative majority has made clear that Dobbs is only the beginning.
Critical constitutional law uses the metaphor of the palimpsest to study law and the search for essential origins. In antiquity, a palimpsest was a document treated with chemicals or scrubbed to erase the original text. This allowed the document to be recycled and written anew. Yet, some documents still retained faint images of the original text. By exposing repeated erasures and inscriptions, palimpsestic inquiry reveals how the law is in a constant state of transition and transformation. It also reinforces the findings of genealogy, a critical theory that views history as a field of self-interested interpretations and moral prejudices with no true essential origin.
Through palimpsestic inquiry, new insights can be gleaned from Dobbs , a legal decision that is simultaneously historical, ahistorical, and filled with history. It exposes the outdated and misogynist values that permeate Justice Alito’s majority opinion. It reveals how history was scraped clean and reinscribed to justify originalist values. But, palimpsestic inquiry also explains that vestiges of Roe and Casey —and the values they represent—still remain. In the Hegelian dialectic of abortion law—where jurisprudential theories struggle for primacy in the zero-sum world of a nine-member Court—the Alito Palimpsest is merely the current iteration. Palimpsestic inquiry confirms that essential origins are seldom what they seem.
This article begins with Dobbs , but its contributions to legal theory extend far beyond this one case. If history has become the touchstone for constitutional interpretation, this article offers a more honest methodology for studying law in the modern era. In fact, it provides the “master metaphor” for the study of law—offering clarity to a range of constitutional rights
Suspicion as Safe Harbor
No full textThe Fourth Amendment is supposed to protect civilians from the police. Ironically, the Fourth Amendment also protects police by creating a safe harbor that insulates them from constitutional speech and race discrimination challenges. Satisfying the Fourth Amendment’s requirement of individualized suspicion goes far in foreclosing claims under the First Amendment and Equal Protection Clause. This is odd given the entirely different purposes the three constitutional provisions serve. The Fourth Amendment protects privacy and liberty while the First and Fourteenth Amendments protect speech and equality, respectively. This Article demonstrates that the safe harbor’s existence rests on two premises. The first premise is that police deserve a presumption of regularity because they generally rely on race and speech in a narrowly instrumental way to achieve crime control. The second premise is that the police exist to control crime and that this supremely important state interest justifies discrimination that might be actionable without a safe harbor. Both premises are incorrect. Police discrimination based on speech and race is pervasive and harmful to people of color, the poor, iconoclasts, and other disfavored groups. The police’s putative crime control mission cannot justify those harms. The safe harbor ought to be eliminated as a matter of principle. Doing so is likely to have only modest practical effect because of the police’s ability to evade judicial review. This suggests deeper constitutional problems with policing that can only be addressed through institutional redesign
