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Population-Based Sentencing
Get PDFThe institutionalization of actuarial risk assessments at sentencing reflects the extension of the academic and policy-driven push to move judges away from sentencing individual defendants and toward basing sentencing on population level representations of crimes and offenses. How have courts responded to this trend? Drawing on the federal sentencing guidelines jurisprudence and the emerging procedural jurisprudence around actuarial risk assessments at sentencing, this Article identifies two techniques. First, the courts have expanded individual procedural rights into sentencing where they once did not apply. Second, the courts have created procedural rules that preserve the space for judges to pass moral judgment on individual defendants. These responses exist in deep tension with policymakers’ goals to shape sentencing outcomes in the abstract. While courts seek to preserve the sentencing process, advocates encourage the courts to manage the population-based sentencing tools. The courts’ response is potentially problematic, as refusal to regulate the tools can undermine criminal administration. However, it presents an underexplored opportunity for courts and opponents of the recent trend toward institutionalizing actuarial risk assessments to jointly create the intellectual and policy-driven space for more fundamental, structural reforms relating to the U.S. criminal legal apparatus. This Article urges the courts and legal scholars to consider these alternatives going forward
Nature\u27s Rights
Get PDFDo forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, a plaintiff brought a suit claiming rights for the Colorado River ecosystem, although the case was dismissed. Meanwhile, several countries outside the United States have extended standing and substantive rights to nature, and that number is growing quickly. This international trend matters because U.S. Supreme Court Justices, including Sonia Sotomayor and Stephen Breyer, have argued that American courts should note and address cutting-edge legal developments in foreign jurisdictions.
This Article provides the key foundational and theoretical basis for recognizing the rights of nature. It explores the intellectual and precedential basis for accepting nature’s rights, surveying developments in the natural sciences, social sciences, and humanities, and providing a survey of select legal systems that currently recognize such rights. It traces the geographic, theoretical, and practical development of the idea of nature’s rights, illustrating that human thought regarding the intrinsic value and rights of nature has evolved significantly since our common law on the issue was established. This Article thus provides the intellectual, moral, and philosophical foundation for students, clerks, judges, and lawmakers facing questions about extending rights to nature
Second Thoughts on FDA\u27s Covid-Era Mental Health App Policy
Get PDFAs the coronavirus pandemic swept across the globe in April 2020, the US Food and Drug Administration (FDA) made an unusual decision. The agency announced that it would relax its enforcement of compliance rules for “digital therapeutics”—smartphone apps designed to address mental health disorders. The measure was a response to widely reported upticks in symptoms of anxiety, depression, and substance abuse brought on by the pandemic. As an added benefit, the agency explained, digital therapeutics could promote social distancing by removing patients’ need to visit health care providers.
This essay explores the possible lasting effects of the FDA’s temporary suspension of its rules. After the FDA put its waiver into effect, makers of unapproved apps branded as “wellness” tools rebranded their products as medical interventions. That rebranding could harm patient privacy. Many “wellness” apps that have rebranded themselves as health interventions operate outside of the confidentiality and privacy laws that bind therapists and other healthcare providers. Many of these apps share user data more liberally than health care providers. The FDA’s temporary suspension of its enforcement could provide a glut of highly sensitive information to app developers and the partners they transmit user data to.
The FDA’s suspension of its rules could also suppress consumer confidence and, by extension, future innovation investments. Clinical studies do not back many wellness apps’ recent medical claims. If some of these apps are ineffective, consumers may categorically lose confidence in app-based mental health interventions—including treatments that are effective. Suppressed consumer demand could lead to a kind of mental health app “winter”—a period in which investment and research dry up. This possibility highlights the relationship between innovation and consumer behavior. Regulations on advertising could have an unintended impact on innovation.
This essay begins with an explanation of how digital therapeutics fit into the history of mental health treatment. To anchor these concepts, I begin by offering a short introduction to the history and treatment of anxiety disorders—the most common class of mental health disorders in the United States. I then explain how the FDA regulates the marketing of mental health apps. Through before-and-after images of company websites, I show how the FDA’s 2020 suspension enforcement appears to have led app makers to rebrand their devices as medical interventions. Drawing on original interviews, press reports, and legal analysis, I postulate on the potential long-term consequences of the FDA’s temporary waiver
ESG and Climate Change Blind Spots: Turning the Corner on SEC Disclosure
Get PDFThis article examines four areas in which the SEC, for more than a decade, resisted reform or impeded shareholders’ access to sought-after environmental, social, and governance (ESG) information. These areas are: (1) the SEC’s refusal to act on several rulemaking petitions submitted during the years 2009 to 2018, which called for expanded ESG disclosure; (2) the SEC’s grudging promulgation of rules concerning social disclosures as required by Congress in the Dodd-Frank Act of 2010; (3) the SEC’s 2020 revisions to SEC Rule 14a-8, which make the submission of shareholder proposals more difficult, thereby thwarting investor efforts to raise ESG concerns; and (4) an SEC commitment beginning in 2016 to move away from line-item disclosure to a more principled-based system. The article then discusses several reasons for this ESG disclosure reticence, notwithstanding clear trends among investors reflecting the importance of ESG information. First, there was a blind spot in place that either mistakenly assumed issuers already operate under an affirmative disclosure obligation when ESG information is material or more generally resisted the concept that much ESG information is material, decision-useful information using traditional definitions of materiality. But these blind spots toward ESG significance are also symptoms of a larger and more endemic blind spot. Specifically, many SEC officials adhered to an unduly narrow construction of the SEC\u27s tripartite mission--to protect investors; maintain fair, orderly, and efficient capital markets; and facilitate capital formation--and they thereby regarded disclosure to effectuate social or political change as outside the scope of the agency’s mission. Yet, in adopting the federal securities laws in the 1930s, Congress had a much broader understanding of the purposes of disclosure, which included giving shareholders information on how America\u27s public companies were being managed and how companies and banks were exercising power --power that had profound effects on the American economy. Fundamentally, Congress sought mechanisms of corporate accountability, which is precisely what it sought to achieve in the Dodd-Frank ESG provisions, and what current investors are demanding through the shareholder-proposal process and through ESG-rulemaking petitions.Because the SEC is now widely expected to propose requirements for expanded climate and human capital disclosure in the first quarter of 2022, some of the prior sources of resistance may no longer present obstacles. But, because the article illuminates some of the more persistent misconceptions surrounding ESG disclosure, its analysis continues to be relevant as the SEC’s process for ESG disclosure unfolds
Playing with Fire: Marketing Youth Toy and Working Firearms as Social Problem and Social Panacea
No full textThis book offers rich critical perspectives on the marketing of a variety of toys, brands, and product categories. Topics include marketing undertaken by specific children\u27s toy brands such as American Girl, Barbie, Disney, GoldieBlox, Fisher-Price, and LEGO, and marketing trends characterizing broader toy categories such as on-trend grotesque toys; toy firearms; minimalist toys; toyetics; toys meant to offer diverse representation; STEM toys; and unboxing videos. Toy marketing warrants a sustained scholarly critique because of toys\u27 cultural significance and their roles in children\u27s lives, as well as the industry\u27s economic importance. Discourses surrounding toys—including who certain toys are meant for and what various toys and brands can signify about their owners\u27 identities—have implications for our understandings of adults\u27 expectations of children and of broader societal norms into which children are being socialized.
Includes the chapter, Playing with Fire: Marketing Youth Toy and Working Firearms as Social Problem and Social Panacea by Maurer Professor Jody Madeira.https://www.repository.law.indiana.edu/facbooks/1299/thumbnail.jp
Men and Women of the Bar: A Second Look at the Impact of Gender on Legal Careers
Get PDFA lot has happened in the time since our last study. Women have continued to improve their position in legal education and the legal profession. In 2009, women were 47% of first-year law students in American law schools and 31% of practicing lawyers. Women\u27s enrollment in American law schools has steadily increased so that in 2018 they were the majority of firstyear law students (53.1%), and in 2019, they were the majority of all law students (51.3%). Correspondingly, with women\u27s advantage in numbers in education, women\u27s participation in the legal profession has continued to increase so that in 2019 they now constitute 38% of all practicing lawyers. Some scholars estimate that women\u27s representation among lawyers will reach 40% by 2020 and 50% by 2050. Also, since our last study, the economy suffered the Great Recession and the COVID-19 Pandemic Recession. It is commonly thought that the Great Recession accelerated structural changes in the legal profession, including changes that may have a disparate impact with respect to gender. For example, it is thought that the profession\u27s movement towards improving work/family balance was side-tracked as firms increased work hours to maintain partner salaries in the wake of the Great Recession. With women undertaking childcare responsibilities in greater proportion than men, it might reasonably be feared that a profession-wide increase in work hours would have a greater negative impact on the careers of women. At the time of the writing of this article, it is not yet clear what the impact of the COVID-19 Pandemic Recession will be on the US economy or the legal profession. The data in this analysis is from prior to the pandemic, so we will not shed light on that question.
In this study, we undertake an empirical analysis of the continuing progress of women in the legal profession and the differences that gender makes in the lives and careers of attorneys. As in our first study, we will examine the impact of gender at each step in the typical lawyer\u27s career from choice of a job, to experiences in practice, to the decision to have kids and undertake the problem of balancing work and family, and finally, to promotion and partnership. In addition to examining the progress of people\u27s legal careers, we undertake a detailed analysis of the differences in income and career satisfaction enjoyed by men and women during their careers. To track trends and recent changes in the examined questions, we analyze data from two recent time periods: survey years 2002-2006 and survey years 2014-2018. These distinct time periods, separated by 8 years, were selected to provide some separation in time in order to observe trends and changes, and because they conveniently separate the survey respondents who participate five years after graduation into pre- and post-Great Recession graduates (graduation years 1997-2001 and 2009-2013, respectively). Of course, in discussing observed trends we will also make frequent references back to the findings of our previous study which examined the data from survey years 1981-1991 and 1996-2000 (graduation years 1976-1986 and 1991-1995, respectively).
In this analysis, our primary data source is the University of Michigan Law School Alumni Data Set. With regular surveys conducted on Michigan alumni from 1967 until the present, the University of Michigan Law School Alumni Data Set provides a unique opportunity to examine the respondents\u27 legal careers from the days when female attorneys were rare, to the present time when women represent a majority of the new attorneys entering the profession. Because the Michigan Data Set includes only University of Michigan alumni, a diverse but relatively elite swath of the legal profession, we will also report comparable results found in the existing empirical literature, in particular, the Chicago Lawyers survey and the American Bar Foundation\u27s After the JD study
a short & happy guide to The Rule: The Little Book on Perpetuities, 2d.
No full textMost students view the Rule against Perpetuities as the most difficult rule in law school. Moreover, the Rule is still covered on MBE for Property and MEE for Wills and Trusts and yet few student-centered resources exist. The Little Book on Perpetuities fills this gap. An ideal subject for self-study, this guide covers all key parts of the Rule, including problems for self-testing. It presents the Rule in its historical context but in a fun, engaging, and accessible way that is simple and clear for students to use. It can be used for Property classes, as well as Wills & Trusts and can supplement a casebook or be used as a separate, self-continued unit. Coverage includes: the common-law Rule and all the famous classics traps; modern statutory reforms, including the new generations-based rule by the Restatement Third of Property; recent efforts by some states to abolish the Rule; and the history and policies of the Rule.https://www.repository.law.indiana.edu/facbooks/1315/thumbnail.jp
Contracts on the Seabed
Get PDFFour million square kilometers of seabed within the sovereignty of Pacific Island nations are currently under contract for mineral exploration or exploitation. Over a million additional square kilometers of the non-sovereign seafloor are licensed for such use. Historically, these licenses have served to establish “squatters’ rights” in anticipation of a distant future when the industry would develop the machinery to exploit oceanic mineral wealth. That moment has arrived, with the first seafloor mining machines rolling off production lines in 2015-2016. Indeed, but for failed financing, the first seabed mine would now be operating in the territorial ocean waters of Papua New Guinea.
Governance mechanisms have not kept pace with scientific and industrial innovation. Few countries have developed laws, regulations or even voluntary agreements governing this activity, and none adequately address the known effects of seafloor mining or provide contingency plans for the unknown and currently unknowable effects of this new technology. Local communities and civil society organizations in the South Pacific have called for outright bans on the activity, fearing grave and unpredictable harms to the marine environments with which they have vital economic and social relationships. Governments, too, are scrambling. While some have called for moratoria, and a few have been moving at top speed to enact seabed mining legislation, most governments contemplating seabed mining are still unprepared. They have not declared moratoria, nor have they enacted legislation or created the statutory, regulatory, and administrative structures necessary to support seafloor mining and to mitigate potential harms.
This Article addresses the urgent need for strong contracts between governments that plan to allow seabed mining as a path to economic development and the companies interested in accessing the valuable natural resources on the seabed within these countries’ sovereign control. Especially for countries with little experience with land-based mining or with thin regulatory infrastructure for seabed mining, such contracts will be indispensable in ensuring that countries receive the economic benefits they have been promised, while also safeguarding the ocean on which the countries and their populations traditionally rely for their well-being
