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Comment: The Project of Freedom
Get PDFA person’s status may change over time and people should have the right to maximize their autonomy and learn and grow from their experiences. Legal structures must encourage autonomy and growth, rather than producing a static environment that prevents people from challenging external controls imposed upon their lives. Law can create legal structures that sustain an individual’s right to live according to their values. As Ms. Rosen writes, “[i]f an individual is capable of valuing, the wishes stemming from those values should dictate how the individual ought to be treated.” By protecting those values, Ms. Rosen’s Note advises us how the law can be a stronger tool for the project of freedom. The choice of whether to use that tool is ours
The Free Exercise of Copyright Behind Bars
Get PDFPeople in prison produce vast amounts of creative and expressive work—from paintings and sculptures to essays, novels, music, and NFTs—but they are rarely described as artists and their work is often not described as “art.” Prisoners also do not regularly take advantage of copyright law, the primary form of protection for creative works. They should.
Copyright provides a strong set of rights that combines strains of free expression values with elements of property rights. Copyright confers dignitary and expressive benefits and, for some creators, financial rewards. As such, copyright can be a tool to help prisoners improve their lives, both while they are incarcerated and after they are released. In the prison context, copyright should be thought of as akin to a civil right and a part of the movement to reform the U.S. carceral system, empowering those who create. Moreover, because copyright is a right in intangibles, there is no reason that prisoners cannot or should not advance and vindicate their copyright interests just as they would if they were not incarcerated. In other words, copyright behind bars should not operate any differently than copyright in the free world.
This Article first describes the enormous range of artistic work created by those who are imprisoned, as well as the prison system’s regular attempts to deter and suppress such work. The Article then explains how copyright law protects virtually all of these works and why copyright is valuable to prisoners and should become part of the carceral reform project. Finally, the Article argues that there is no reason to limit the exercise of copyright by those who are incarcerated and no justification for impinging on prisoners’ ability to create, disseminate, and profit from their expressive and artistic works
Children\u27s Equality Law in the Age of Parents\u27 Rights
Get PDFIn this Article, I will briefly highlight the meager doctrinal landscape for children\u27s equal protection rights. I will then argue that the current family law system, relying on parents to act in the best interest of children to protect them, falls far short in a society built upon group-based hierarchies. Sometimes, parents will not have the political power to act in their children\u27s best interest to intervene to stop their unequal treatment at the hands of state and private actors. In fact, several landmark cases demonstrate that often out of necessity, children\u27s rights play a pivotal role in ensuring our nation\u27s fidelity to its aspirational equal protection values. In these cases, children invoked their own rights to protect themselves and in doing so, provided a constitutional back-stop for group-based discrimination. Finally, this Article will briefly explain the importance of developing the field of children\u27s equality law
(How) Is Prison Philosophy Public?
Get PDFIn this essay we reflect on our shared experiences participating in a prison philosophy program, to consider just how our philosophical activities inside prison, and our related work outside, were—or were not—“public.” Some may also wonder if all the activities we describe are instances of “philosophy.” We take it that they are, insofar as they all engage teaching or reflecting on philosophy, deploying philosophical skills (including critical thinking, writing, and argumentation), or rely on philosophical concepts, including from feminist and critical race theory and praxis. However, we also suggest ways in which this work highlights the need to further refine a definition of public philosophy
Hollywood at Home: Applying Federal Child Labor Laws to Traditional and Modern Child Performers
Get PDFIn the past few years there has been a rise in online influencers who gain money and fame from their online content, and in many cases these influencers are children. Although this can be seen as a “job,” federal child labor laws exempt all child performers from protections. This means traditional child actors and children who create online content must rely on state laws regarding child labor. While some states have protections for child performers, several states have no such laws in place. In addition, the current protections are not available to children who take part in online content. Without such protection, children could be exploited by the adults around them for monetary gain and face the psychological harms that can result from fame and prolonged access to social media. While parents have a right to raise their children, when they are effectively acting as their child’s employer there should be safeguards put in place to ensure the safety of the child. This Note examines the laws currently in place for child performers and the harms that can befall children in the entertainment industry. As a solution, this Note proposes a model of new federal legislation that could be enacted to protect all children in the entertainment industry, balancing the rights of parents with the state interest in the wellbeing of the children involved
\u3cem\u3eWhite v. Panic\u3c/em\u3e, in Feminist Judgments: Corporate Law Rewritten (Anne M. Choike et al. eds., 2023)
No full textCorporate law has traditionally assumed that men organize business, men profit from it, and men bring cases in front of male judges when disputes arise. It overlooks or forgets that women are dealmakers, shareholders, stakeholders, and businesspeople too. This lack of inclusivity in corporate law has profound effects on all of society, not only on women\u27s lives and livelihoods. This volume takes up the challenge to imagine how corporate law might look if we valued not only women and other marginalized groups, but also a feminist perspective emphasizing the importance of power dynamics, equity, community, and diversity in corporate law. Prominent lawyers and legal scholars rewrite foundational corporate law cases, and also provide accompanying commentary that situates each opinion in context, explains the feminist theories applied, and explores the impact the rewritten opinion might have had on the development of corporate law, business, and society.https://scholarlycommons.law.wlu.edu/fac_books/1172/thumbnail.jp
Transforming the Future of Work by Embracing Corporate Social Justice
Get PDFProfessionals from Generations Y (millennials) and Z (Gen Z or zoomers) expect their employers to embrace diversity, equity and inclusion (DEI). They want to work for companies that support individuals of various races, ethnicities, religions, abilities, genders, and sexual orientations. Professionals from these generations are seeking employers that have created a diverse workforce, clear promotion track, and a commitment to dismantling systemic racism. Companies that want to attract top talent are making DEI a priority. They are also implementing action plans to demonstrate their serious commitment to DEI because millennials and zoomers are quick to recognize and criticize performative approaches. Companies that excel in the DEI space are likely to reap significant rewards, especially the time, energy, and talent of young job seekers.
This Article explores and enriches DEI strategist Lily Zheng’s definition of corporate social justice (CSJ), which is “an approach to societal change centered on the measurable, lived experiences of groups disadvantaged by society regulated by trust between a company and its employees, customers, and the broader community it touches, and realized through deep integration with every aspect of a business.” The Article starts by describing DEI approaches and programs. It then presents legal background, including analysis of the upcoming U.S. Supreme Court affirmative action decisions and their likely impact on DEI practice. This article then relates Zheng’s definition of corporate social justice to: (1) traditional ethical guidelines, (2) original debates about corporate social responsibility, and (3) contemporary support for environmental social governance (ESG). Integrating past theories with present-day ideas allows us to envision a fair future of work. Corporate and organizational DEI approaches and programs must challenge the status quo to realize the dream of a just workplace. This Article ultimately offers concrete recommendations for working toward corporate social justice
Changing the Game: The Emergence of NIL Contracts in Collegiate Athletics and the Continued Efficacy of Title IX
Get PDFOn June 30, 2021, the National Collegiate Athletic Association (“NCAA”) suspended a 115-year prohibition on college athletes’ ability to profit from the use of their names, images, and likenesses (“NIL”). Historically, NCAA eligibility was determined by an athlete’s amateur status. Student athletes forewent compensation to preserve a line between professional and college sports. Today, the NCAA’s novel NIL policy recognizes an athlete’s right to publicity and allows them to share in the billions of dollars it generates every year. According to estimates, college athletes earned 1.14 billion. Despite the abundance of NIL options in the United States, not all athletes benefit. Currently, male athletes receive approximately 74.35% of all NIL compensation. Football and men’s basketball, in particular, receive nearly 71.4% of all NIL deals and 93% of NIL donations. Growth in economic disparity between male and female athletes raises a novel legal question: what role will Title IX, a federal civil rights law enacted to ensure gender equality, play in the NIL era of college sports? This Note analyzes whether Title IX regulations will influence colleges’ and universities’ marketing, promotion, and facilitation of NIL opportunities. In the absence of Title IX’s guarantees of equal access to NIL deals or profits, this Note proposes what could be done to ensure that all public-school students are empowered and uplifted in their pursuit of equitable educational and athletic opportunities
Risk Assessment and Immigration Court
Get PDFRisk assessment and algorithmic tools have become increasingly popular in recent years, particularly with respect to detention and incarceration decisions. The emergence of big data and the increased sophistication of algorithmic design hold the promise of more accurately predicting whether an individual is dangerous or a flight risk, overcoming human bias in decision-making, and reducing detention without compromising public safety. But these tools also carry the potential to exacerbate racial disparities in incarceration, create a false veneer of objective scientific accuracy, and spawn opaque decision-making by “black box” computer programs.
While scholars have focused much attention on how judges in criminal cases use risk assessment to inform pretrial detention decisions, they have paid little attention to whether immigration judges should use risk assessment when deciding whether to detain noncitizens. Yet, the federal immigration detention system is one of the largest in the world, incarcerating nearly 400,000 noncitizens a year. Immigration courts contribute to unnecessary detention and deprivation of liberty due to serious structural flaws. Immigration judges are prone to racial bias, they focus on factors unrelated to danger and flight risk, their bond decisions are nontransparent and opaque, and they are subject to undue political influence that encourages judges to err on the side of detention rather than release.
Given the rise of algorithmic decision-making, the time has come to investigate whether risk assessment has a role to play in immigration court bond decisions. This Article suggests that while there is no easy answer, a well-designed and transparent risk assessment tool could provide a check against the worst features of the current immigration court bond system. Alternatively, even if risk assessment tools prove to be flawed, the information obtained from using them could provide support for broader reform of immigration detention
The Prosecutor Lobby
Get PDFProsecutors shape the use of the criminal law at many points during criminal proceedings but there is an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in legal scholarship is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this Article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all fifty states, we analyze how frequently prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded.
Our data tell a complex story of partial success for the prosecutor lobby. Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform. By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature. We further conclude that perceived expertise does not drive prosecutorial lobbying success and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists