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Unfinished Uniformity in Systematic Sentencing: Oppressive Treatment and Disproportionate Punishment Outcomes for Black Women in Federal Prisons
Get PDFOrdinariness as Equality
Get PDFThis Essay argues for an equality norm of racial ordinariness. Ordinariness here refers to the state of being treated as a full, complex person and a rightful recipient of human concern. As a norm, its purpose is to focus constitutional attention on common, everyday interactions as sources of racial indignity. It also seeks to sensitize courts and other constitutional actors to the infinite varieties and grittier dimensions of discrimination through the “understandings of everyday folk.”
Part I explains why ordinariness matters and the importance of everyday interactions to achieving ordinariness. It discusses these points through the lens of a true story about the shooting death of a black man by the police. Part II discusses court opinions that have identified ordinariness, either explicitly or implicitly, as a form of equality. Part III discusses the Fourth Amendment as one example of how constitutional doctrine denies ordinariness. The Essay closes with a brief discussion of the challenges and possibilities of ordinariness as a constitutional norm.
The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy
Utopian Thinking for Progressive Constitutionalists
Get PDFThe opening pages of Rousseau’s Social Contract have two striking phrases. The more celebrated is, “[m]an was born free, and everywhere he is in chains.” That, though, is preceded by this: “I want to inquire whether, taking men as they are and laws as they can be made to be, it is possible to establish some just and reliable rule of administration in civil affairs.” I take this second sentence as my guide: Taking the textual Constitution as it is and with the interpreted Constitution as it could be, can there be a constitutionalism that progressives could wholeheartedly endorse?
I contrast utopian thinking to the thinking grounding the day-to-day work of progressive litigators and academics focused on achieving the best outcomes possible in the courts (and legislatures) as they are, not as they could be. To focus on the Supreme Court: In such work the hoped-for outcome is one favorable to our long-term goals. Ordinarily that means winning cases. With that goal in mind we unsurprisingly count votes and understand that to win a victory for progressivism (to-day) we have to develop arguments that have some chance of getting the vote of Justice Anthony Kennedy (or, or perhaps and, the vote of Chief Justice John Roberts).
The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy
Climate Change Challenges for Land Conservation: Rethinking Conservation Easements, Strategies, and Tools
Get PDFClimate change has significant consequences for land conservation. Government agencies and nonprofit land trusts heavily rely on perpetual conservation easements. However, climate change and other dynamic landscape changes raise questions about the effectiveness and adaptability of permanent conservation instruments like conservation easements. Building upon a study of 269 conservation easements and interviews with seventy conservation-easement professionals in six different states, we examine the adaptability of conservation easements to climate change. We outline four potential approaches to enhance conservation outcomes under climate change: (1) shift land-acquisition priorities to account for potential climate-change impacts; (2) consider conservation tools other than perpetual conservation easements; (3) ensure that the terms of conservation easements permit the holder to adapt to climate change successfully; and (4) provide for more active stewardship of conservation lands. There is still a good deal of uncertainty as to the legal fate of a conservation easement that no longer meets its original purposes. Many state laws provide that conservation easements can be modified or terminated in the same manner as traditional easements. Yet, conservation easements are in many ways unlike other easements. The beneficiary is usually the public, not merely a neighboring landowner, and the holder is always a non-profit conservation organization or a government agency. Thus, there is a case to be made for adaptive protection. An overly narrow focus on perpetual property rights could actually thwart efforts to meet adaptation needs over the long term. We call for careful attention to ensuring conservation outcomes in dynamic landscapes over time
Fourth Amendment Localism
Get PDFINTRODUCTION - p. 370
I. SUBNATIONAL CONSTITUTIONALISM - p. 376
A. SUBSTANTIVE LAW - p. 377
B. GEOGRAPHY - p. 379
C. RESOURCES - p. 381
II. THE LOCALISTS - p. 382
A. “NEW DEMOCRATISTS” - p. 383
B. “NEW ADMINISTRATIVISTS” - p. 386
C. SUMMARY - p. 389
III. ASSESSING LOCALISM’S LIMITS - p. 391
A. TAILORING - p. 391
B. EXPERIMENTATION - p. 399
C. TIEBOUT SORTING AND EXTERNALITIES - p. 404
IV. WHITHER FOURTH AMENDMENT LOCALISM - p. 408
A. FOURTH AMENDMENT EXCEPTIONALISM - p. 409 INDIVIDUAL INTERESTS - p. 409 STRUCTURAL DEMOCRATIC INTERESTS - p. 411 COMPARATIVE DISTINCTIVENESS - p. 413
B. “LEVELING UP” FOURTH AMENDMENT DOCTRINE - p. 416
CONCLUSION - p. 41
Legislative Committee Systems: A Design Perspective
Get PDFCommittees are the defining characteristic of the modern legislature. While the centrality and study of party politics goes back further than committee politics, the focus on committee systems emerged over the course of the twentieth century, and legislatures could not function as we understand them without this mechanism. The United States Congressional committee system is the most studied system, yet virtually every country utilizes a committee system of some sort within its legislature. Despite their ubiquity in and centrality to the operations of legislatures, committees remain insufficiently studied, especially outside of the United States. The existing body of work tends to look at an individual committee system or feature. This paper attempts to funnel the existing body of work through a design lens in order to better understand what a committee system is, what it does, and how it impacts other structures and actors
The Story of the Dubai International Financial Centre Courts: A Retrospective
Get PDFCan Western-based, English-speaking, common law commercial courts operate successfully in an environment that are not their own—such as in the Middle East? This question is not a simple thought experiment but rather the reality that has occurred since the mid-2000s in the Emirate of Dubai. This monograph recounts the history of how the ‘Dubai International Financial Centre Courts’ emerged. Drawing on extensive interviews with key stakeholders involved in the process, along with rich original documents as well as all of the Courts’ judgments, this narrative offers important lessons for those seeking to understand more fully the complex interplay of how law, legal institutions and legal and political actors operate in today’s globalised world.https://www.repository.law.indiana.edu/facbooks/1199/thumbnail.jp
Life in the Sweatbox
Get PDFThe time before a person files bankruptcy is sometimes called the financial “sweatbox.” Using original data from the Consumer Bankruptcy Project, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. We also describe the depletion of wealth and well-being that defines people’s time in the sweatbox. For those people who struggle for more than two years before filing bankruptcy—the “long strugglers”—their time in the sweatbox is particularly damaging. During their years in the sweatbox, long strugglers deal with persistent collection calls, go without healthcare, food, and utilities, lose homes and other property, and yet remain ashamed of needing to file. For these people in particular, though time in the sweatbox undermines their ability to realize bankruptcy’s “fresh start,” they do not file until long after the costs outweigh the benefits. This Article’s findings challenge longstanding narratives about who files bankruptcy and why. These narratives underlie our laws, influence how judges rule in individual cases, and affect how attorneys interact with their clients