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The Expungement Process: Survey Evidence on Applicant Experiences
No full textTens of millions of Americans with publicly accessible criminal convictions face significant collateral consequences that affect their employment, housing, and family life, which not only harm these individuals but also limit society’s access to their skills, productivity, and participation. In response, policymakers have enlarged the scope and enhanced the accessibility of criminal-record expungement laws. Little is known, however, about how individuals perceive, navigate, and take advantage of these new, broader laws. This Article presents findings from a large-scale survey of 1,439 expungement applicants and recipients in Detroit, conducted in partnership with Project Clean Slate (PCS), a city initiative assisting residents with expungement. We complement our quantitative survey results with administrative data from PCS and detailed interviews with PCS staff and other experts on various aspects of criminal records and expungement in Michigan. Our study explores how individuals learn about expungement and eligibility criteria, their motivations for seeking record relief, the challenges they face in the process, and how, if at all, they overcome these barriers. Our results reveal both the successes and limitations of the petition-based expungement process, including positive evaluations of the process but also barriers to awareness and procedural difficulties that prevent many eligible individuals from obtaining relief. Despite generally positive experiences among PCS clients, challenges such as state-level administrative errors, process delays, and uncertainty about the visibility of expunged records persist. While the recent move in some states toward automated expungement represents progress, petition-based expungement remains crucial in most jurisdictions, requiring continued efforts to improve access and reduce burdens. Our findings contribute to ongoing policy discussions by highlighting the role of legal services, advocacy organizations, and local governments in making record relief more effective and equitable
Creditors, Shareholders, and Losers In Between: A Failed Regulatory Experiment
No full textIn the aftermath of the 2007–08 Global Financial Crisis, regulators encouraged many of the world’s largest banks to hold a new type of regulatory instrument with the goal of improving their safety and soundness. The regulatory instrument was known as a “CoCo,” short for contingent convertible bond. CoCos are neither debt nor equity. They are something in between, designed to give the bank a shot in the arm during times of stress. Many of the largest international banks have issued CoCos worth hundreds of billions of dollars. After more than ten years—a decade that includes the collapse of Credit Suisse in Switzerland—this regulatory experiment appears to have failed.
We leverage insights from economic theory to show that CoCos were unlikely to be effective for two reasons. First, from a finance perspective, providing more equity only stabilizes a wobbling bank in normal times before the market and depositors ask questions about the bank’s health. Once they start asking questions and the bank faces a liquidity crisis (i.e., a bank run), having more equity on the bank’s balance sheet becomes meaningless. Only more liquidity can save the bank from collapse. Second, from a game theory perspective, controlling the public availability and fow of information is crucial in times of stress. If the market and depositors can ascertain which bank is weak or how much financial trouble that bank is in, a liquidity crisis will ensue, and that bank is as good as gone. The stigma effect can be lethal. Ironically, the trigger mechanism built into CoCos can send a public signal that a bank is on its deathbed. It allows the market and depositors to differentiate between the weak and the strong, precipitating the weak bank’s failure.
Is the regulatory experiment salvageable? We offer a set of reform proposals consistent with our theoretical insights. We argue, foremost, that the trigger mechanism should be used early, well before a liquidity crisis begins. We also argue that the mechanism should protect a bank in poor financial health by sending as little information about the bank’s identity to the market as possible. That may require a greater reliance on regulators’ discretion and a simultaneous trigger across several banks to prevent the market from identifying which bank(s) may be in trouble. To be sure, we are clear-eyed that our proposals come with costs, which we describe at length. If regulators conclude that the costs are too high and our proposals are too difficult to implement in practice, they should end the experiment altogether. The status quo is a regulatory fiction
The Misuse of Ratification-Era Sources by Unitary Executive Theorists
No full textThis symposium essay suggests that, given an ostensibly originalist Supreme Court, the future depends on getting the past right. The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.
The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for the unitary executive theorists, because The Federalist Papers are solid contrary evidence. The Ratification debates were silent about whether the President had a general power of removal—even in the voluminous Anti-Federalist speeches and writings, where one would most expect to see such warnings if they existed.
Aditya Bamzai and Saikrishna Prakash, attempting to rescue their theory that Article II implies a presidential power of removal at pleasure, claim to have identified five passages from the Ratification debates. Unfortunately, none of these five passages withstand scrutiny. These misuses are part of a serious pattern of misuses of historical materials. Historians and legal scholars have offered so much evidence against these claims, with the unitary theory’s defenders offering so little evidence in return, that it is safe to say that none of these pillars remain standing
The Climate Whisperers
No full textEnvironmental groups and their allies have seen two of the bedrock statutes of modern environmental law (the Clean Air Act, Clean Water Act) eroded through recent decisions from the Supreme Court. At the same time, political polarization around climate policy- the gap between Republicans and Democrats on whether worsening global warming merits a response- is wider than it has ever been.
Despite these dispiriting headwinds, there are some encouraging counterpoints of recent climate progress in politically conservative communities. The heart of this essay is simply sharing these stories so we can learn from them. I label the advocates who succeeded in promoting solar-energy development in Batesville, Arkansas and Evansville, Indiana as climate whisperers for their talent in bringing unlikely allies to the table. What they seem to have in common is that they excel at listening for listening\u27s sake- by which I mean listening to community members\u27 concerns with humility and without judgment.
Finally, I conclude that these climate whisperers have important lessons to teach lawyers and law students looking to work on environmental advocacy. Building off of the work of the community lawyering movement, I recommend that the most immediate task for climate lawyers is to develop the skills of good listeners. While the American Bar Association\u27s Model Rules of Professional Conduct have largely overlooked these skills, they strike me as essential to ethical lawyering in this context
Lead Telecommunications Cables: A Call for Concern?
No full textFrom the late 1800s until the 1950s, telecommunication companies across the United States utilized lead casing to protect their telecommunication lines. As technology developed and different types of plastic coatings were created, telecommunication companies phased out the use of lead cables. However, the lead cables remain in the air and buried in the ground, even continuing to provide telephone service for some. The failure to remove these cables, most of which are not in use anymore, has generated a slew of issues for the modem-day telecommunication companies that have inherited these cables from their predecessors. As the protective casing decays, a possible major environmental and public health issue has come from the cables\u27 slow release of lead into the surrounding environment.
Investigations and one large lawsuit have opened into the issue of the existing lead cables. But are the lead cables as dangerous as these investigations allege? A comparison of lead in different industries may show that the underlying issue with the lead cables is not as extreme as previously imagined. With allegations and investigations clouding the telecommunications industry, other industries\u27 use of lead may be used to defend the existing business practices of leaving the lead cables in place. The evolution of lead regulation in other industries provides insight into the extent of regulation needed for the telecommunications sector as a comparison may reveal which regulation would be most effective for this current need.
It has not been determined if the existing lead cables throughout the United States do pose a threat to environmental and public health. However, when the lead cables are eventually removed, regulatory bodies will likely need to provide some long-term plan for the removal process. This will likely need to be effectuated through assistance programs that help telecommunication companies remove the existing lead cables over an extended period of time, likely spanning many years. Nonetheless, courts and regulatory bodies will need to tread carefully into this area, as existing lead regulations provide merely a possible solution that can and should be improved upon later as the extent of the problem becomes clearer
Oklahoma Statewide Charter School Board v. Drummond, et al.: Brief of Amici Curiae Constitutional and Education Law Scholars in Support of Respondent
No full textAs Amici Curiae, the Constitutional and Education Law Scholars listed in the Appendix submit this brief in support of Respondent. Amici are immersed in the study of constitutional and education law through their scholarship and teaching and believe in upholding core constitutional rights in the provision of public education. Amici are acutely aware of the role public education has historically played in preserving and making possible our democratic system of government. Amici seek to assist this Court by explaining how state laws have created charter schools as a means of discharging states’ core constitutional obligations to provide public education and how these legal structures relate to issues presented in this case
Neighborliness vs. Car Culture: Traffic Violence, Pedestrian Deaths in Philadelphia, and Vision Zero\u27s Concept of Equity
No full textVision Zero (VZ) is a transportation policy adopted by major cities like Philadelphia that aims to reduce or eliminate traffic violence, primarily through improvements in the transportation infrastructure. VZ prioritizes engineering (over enforcement), community engagement, and perhaps most importantly, equity. In the battle for superiority among users of land-based travel modes in America, automobile drivers have benefited from arterial highways that speed traffic flows around and through urban enclaves to reach center city business districts and from a car culture that encourages dominant behavior behind the wheel. Pedestrians have been among the losers.
In Philadelphia, as elsewhere, pedestrians who are killed are disproportionately Black and Latino/Hispanic. Moreover, the traffic violence that befell them occurred disproportionately on roadways in communities that are occupied by lower-income people and described as being “disadvantaged” or “underserved.” What more can we learn about the victims? Focusing on fatal traffic violence inflicting walkers in Philadelphia in 2023 and relying on granular data from police department databases and print and on-air media reports, research reveals that the vulnerable walkers included public transit riders; people with a range of physical, mental, and emotional abilities; night and swing shift workers; people who are marginally employed and marginally housed; and travelers on foot in communities with high rates of street crime. Furthermore, the demographic and socioeconomic characteristics of a community can negatively impact the incidence of hit-and-run driving, a significant causal factor in pedestrian injuries.
Vision Zero’s goal of traffic violence abolition and greater traffic safety for pedestrians and other non-driving users of the transportation system will require not only engineering fixes, but also empowered community engagement and participation. Communities may favor positive reinforcement of safe behavior over law enforcement and negative sanctions. In contrast to car culture, communities are likely to promote “neighborliness,” not dominance, as the ethical or moral basis for pursuing social justice in the operation of automobiles