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Confining Rights: The Neuroscientific Challenge to Long-Term Solitary Confinement Under the Eighth Amendment
Full text linkWhat’s So Compelling About Diversity Anyway?: How the Affirmative Action Diversity Rationale Was Built to Fail Under Today’s Equal Protection Doctrine
Full text linkThe Legacy of Dobbs: How the Supreme Court’s Decision to Review Gender- Affirming Care Bans Signals Its Intent to Eliminate The Protections of Bostock and Obergefell Against Laws Designed to Discriminate Against LGTBQ+ Individuals
Full text linkPeace Agreements and the Persuasive Authority of International Law
Full text linkNon-international armed conflicts, or “NIACs,” are the most common form of warfare in the contemporary era. Not surprisingly, agreements ending NIACs are the most common type of peace agreement. But NIAC agreements appear permanently suspended in an international legal limbo: they do not qualify as binding treaties and neither international actors nor scholars agree on another legal status for these critical instruments. This article is the second in a series to explore alternatives to the binding/non-binding dichotomy in understanding NIAC agreements’ relation to international law. We argue that the agreements regularly incorporate principles of international law embodied in a range of widely ratified treaties. This is a direct engagement with the substance of international norms, rather than an understanding of the agreements’ functions being regulated by international norms. The latter would be the consequence of the agreements being legally binding. As evidence, we collected and coded all final NIAC agreements from 1991 to 2017 for incorporation of international law principles, grouped primarily as those related to governance in the post-conflict state and those pertaining to transitional justice. We proposed a series of hypotheses as to why some agreements might have higher rates of incorporation and some lower. Our primary findings reveal: (i) a notable increase in the incorporation of transitional justice principles, not governance principles, when the United Nations assumes roles such as party, mediator, observer, or witness; (ii) a decrease in international law incorporation, when regional organizations are involved in any capacity; and (iii) an associated decrease in overall international law incorporation, specifically governance principles, as conflicts become more lethal or focus on territorial disputes. The UN’s association with higher inclusion of international norms, as well as the ubiquity of including governance norms when any third party joins a NIAC peace process, casts the agreements as important vehicles for implementing and enforcing international legal principles. This role for international law is not dependent on the agreements’ formal status. But the critical participation of the UN—an organization not only built on fidelity to international law but that instructs its representatives to employ international law as a framework for peace process—is also a marker of this role’s fragility. Recent gridlock in the UN may have dire implications for this mode of legal influence
Unpunishment Purposes
Full text linkSentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation. However, little scholarship exists addressing how these four punishment purposes apply in the post- sentencing or second-look contexts. Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how violent, disproportionate, and dehumanizing the actual experience of incarceration is for many people, and tend to downplay the impact of incarceration on the families and communities of those who are incarcerated. This Article attempts to reconceptualize the traditional purposes of punishment to meet the current historical moment, and it does so through a decarcerative and abolitionist lens.
Within the past decade, an increasing number of state and federal retroactive relief mechanisms have enabled incarcerated people to petition courts for sentence reductions or early release from prison based on various legal theories. But guidance provided to courts and other decisionmakers about how to exercise their discretionary decarceration authority is lacking. Accordingly, this Article highlights the need to develop a theory of resentencing and asks whether the four purposes of punishment require revision or augmentation to account for the sentence reduction context. This Article uses the federal second-look context as a means to explore these themes.
This Article also aims to start a conversation about how abolitionist frameworks centered around harm prevention or reduction could be incorporated into the punishment purposes. Although adherence to the four punishment purposes has persisted at both initial sentencings and within second-look proceedings despite their clear shortcomings, this Article urges decisionmakers to look at the harm caused by incarceration more expansively. More than that, however, incorporating such a theory into a prospective sentencing may lead judges to rethink their reflexive reliance on the present formulation of the punishment purposes, resulting in less punishment altogether
Investor Justice
Full text linkThere is a systemic flaw in the investor protection landscape. Unrepresented investors face off against well-resourced repeat- player firms that almost always have lawyers. While consumers face similar challenges in civil courts, in forced securities arbitration, the decisionmaker may not have a law degree, is prohibited from conducting any outside legal research, and has no monetary incentive to read materials the parties submit. These realities amplify already-existing informational and resource asymmetries between Main Street investors and stockbrokers and undermine the market-legitimizing function of securities arbitration. Despite being designed to permit investors to recoup losses without the aid of an attorney, the mandatory securities arbitration system has evolved into a process that investors cannot navigate on their own. This Article explores the unintended consequences of procedural changes designed to improve and professionalize the mandatory securities arbitration forum. In addition to shedding light on structural norms that disproportionately impact average investors, this Article proposes interventions to ameliorate those burdens. In so doing, it contributes to ongoing discourse concerning investor protection, procedural justice in forced arbitration, and access to justice for regular people
Diversity Messaging After Affirmative Action
Full text linkMany colleges and universities communicate publicly that they value racial diversity—a practice this Article will call diversity messaging. Yet growing hostility to race-consciousness by courts, legislators, and other public figures has made diversity messaging increasingly fraught.
This Article examines empirically whether law schools changed their diversity messaging following the Supreme Court’s decision in Students for Fair Admissions v. Harvard (SFFA), and, if so, how. I surveyed three sources of diversity messaging from law schools: admissions materials, hiring announcements, and DEI websites. Analysis of these materials revealed that schools significantly reduced or eliminated their diversity messaging after SFFA. Seventy-three percent of law schools revised the diversity messaging in their application materials: explicit references to race decreased by 73% and explicit references to diversity decreased by 36%. Similarly, 44% of law schools revised the diversity messaging in their hiring announcements: 50% of those schools eliminated language stating that they actively seek or value diversity, and the number of schools requesting a diversity statement decreased by 33%. Finally, 54% of law schools revised their DEI websites in the five months following SFFA, with 48% of those schools deleting explicit references to race or diversity, and several schools completely deleting their DEI pages.
These sweeping changes reveal that schools are revising their diversity messaging in ways that are not explicitly required by SFFA. One possible explanation for this seeming overcompliance with SFFA is that schools wish to reduce the legal, political, and social risks associated with diversity messaging after SFFA. Alternatively, we might conclude that schools’ commitment to racial diversity was always ambivalent—and thus easily surrendered when the winds shifted.
Regardless of the underlying explanation, the Article argues that the decrease in diversity messaging need not impair racial justice efforts on campus. Indeed, untethering diversity messaging from substantive racial justice may encourage schools to emphasize substance over signal. The Article concludes that racial justice can thrive in a post-SFFA world and offers several concrete measures that schools can pursue
Unbecoming Public Benefit Corporations
No full textBecoming a Public Benefit Corporation by Michael B. Dorff1 is a strong, useful book, clear and well-written. Addressed in good part to entrepreneurs and investors, its sub-title encapsulates much of its core message to them: Express Your Values, Energize Stakeholders, Make the World a Better Place. I see the book as making two core points. First, benefit corporations are a reasonable legal form for entrepreneurs and investors to adopt. Second, this new legal form may help companies do a better job of behaving in a socially responsible way, though this point is less certain than the first, and benefit corporations do not do as much as they might to encourage better behavior. In particular, benefit corporation statutes provide good tools for reinforcing responsible behavior in companies already inclined to behave well but not good tools for enforcing responsibility in less well-motivated companies.\u27 I think all these points are largely correct. And yet, I think they tell a story that is more dispiriting for the usefulness of benefit corporation statutes than Dorff believes