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Fixing Disparate Prosecution
Get PDFAmerica\u27s system of public prosecution is broken. Prosecutors who charge harshly or disparately are shielded from any consequences or recourse, and defendants are left with few options. This asymmetry in power results in prosecutors singlehandedly maintaining mass incarceration in the United States and leads to some states incarcerating more people per year than entire countries. Prosecutors in the United States are permitted to charge with little supervision or guidance other than to follow the law and “seek justice.” Many choose to charge the highest number of crimes possible, while others choose to exercise restraint and label themselves as “progressives.” But there is no solicitude for individuals who are subject to the whims of an individual prosecutor who might decide to throw the book at an individual rather than exercise mercy and drop charges for a minor first-time offense. Both normative and structural changes are needed. But proposed normative changes-- such as progressive prosecution or evidence-driven prosecution--rely on prosecutors themselves to change and lack any enforcement mechanism. Likewise, proposed structural reforms are often too unrealistic to seriously contemplate. While we support these reforms rhetorically, this Article proposes a much simpler, potentially more pragmatic reform. Each defendant should be legislatively provided with a private right of action against disparate prosecution. In other words, a defendant believing she has been charged or sentenced unfairly or out of step with others in a particular jurisdiction could challenge the prosecutorial action and shift the burden to the prosecutor to justify charges. This straightforward proposal could shift the balance of power and create the right incentives to force prosecutors to check their decisions, and in turn result in less draconian charging throughout the United States
States’ Obligation to Provide for Trans Youth: How Medicaid Requires (Most) States to Provide Access to Puberty Blockers
Get PDFOver the last few years, many states have endeavored to strip minor access to gender-affirming healthcare, and these efforts have seen considerable success. By the end of 2023, twenty-two states had enacted legislation that limits youth access to genderaffirming healthcare. In line with these efforts, many states have created policies that exclude Medicaid coverage for gender-affirming puberty blockers--medications that delay the physical changes to one\u27s body that occur with sexual maturity. These efforts contravene guidance from the medical community, which pronounces the importance of access to gender-affirming puberty blockers for transgender and gender-diverse youth, and often considers them medically necessary for those experiencing gender dysphoria. With such strong support from the medical community, state actions that limit minor access to gender-affirming puberty blockers call into question state compliance with the obligations imposed by the Medicaid Act. More specifically, the required expansive youth benefit--the Early and Periodic Screening, Diagnostic, and Treatment program--requires the provision of comprehensive preventative, diagnostic, and treatment services to identify and treat health issues in children. This Note focuses on whether states can deny Medicaid coverage for gender-affirming puberty blockers under the Medicaid Act--an issue that has gone largely unexplored in the courts. In considering the research relating to gender dysphoria and puberty blockers, and after applying those findings to the requirements of the EPSDT program, this Note argues that, in most cases, states must provide Medicaid coverage for gender-affirming puberty blockers under the Medicaid Act
Age Restrictions and the Right to Keep and Bear Arms, 1791–1868
Get PDFThe disproportional misuse of firearms by eighteen-to-twenty-year-olds has long been a problem in America. The concerns are not novel. Nor are legislative responses to this problem a recent development in American law. These limitations are deeply rooted in American legal history. While minimum age gun laws routinely survived constitutional challenges before the Supreme Court\u27s decision in New York State Rifle & Pistol Ass\u27n v. Bruen, the majority of courts applying Bruen have struck down firearms restrictions based on age. Bruen fundamentally altered the way courts evaluate the constitutionality of firearms regulations, requiring them to judge modern gun laws based on history, text, and tradition. As Bruen requires, courts have turned to history to adjudicate these challenges. Unfortunately, many courts have discounted the relevant history and tradition. At the time of the Founding, individuals under the age of twenty-one were viewed as lacking sufficient judgment to make responsible decisions. These individuals, categorized as “infants” at the time, were unquestionably not full members of the political community. Their ability to contract was limited, which prevented them from obtaining arms without the assistance of parents or guardians. Although those under the age of twenty-one served in the militia, statutes mandating militia service do not demonstrate a right to keep and bear arms outside of militia service. Instead, these statutes demonstrate the government\u27s power over eighteen-to-twenty-year-olds, and represent the obligation of minors to serve, not an independent right to possess firearms. The nation\u27s tradition of regulating firearms based on age expanded after the Founding. By the time of the adoption of the Fourteenth Amendment, such regulations were commonplace and widely viewed as a core exercise of state and local police power. Bruen\u27s directive that modern-day firearms regulation must be guided by history supports limits on minors\u27 access to deadly weapons. Anglo-American law has always countenanced restrictions based on age, and recent developments in neuroscience have vindicated historical wisdom on this matter. Brain development of eighteen-to-twenty-year-olds is incomplete, a fact that limits their ability to evaluate risk and heightens their inclination to make reckless decisions. Indeed, while our understanding of the place of women and minorities in society and the political community has rightfully transformed since the time of the Founding, the view of teenagers\u27 limited capacity to make responsible decisions has not changed, but, instead, has been bolstered by scientific development. Applying Bruen\u27s analytical framework to these facts leads to the conclusion that modern-day firearm regulations based on age are justified by history, text, and tradition
What Should Caremark Encompass?
No full textUnder In re Caremark Int’l Inc. Derivative Litig., decided in 1996, directors are required to oversee corporate compliance and can be liable for breaching their fiduciary duties if their oversight efforts do not suffice. Since it was decided, Caremark has been very influential, notwithstanding its high bar to liability. Notably, its influence far exceeds the actual probability that directors would be found liable under the doctrine. Instead, much of Caremark’s force is “soft,” through extra-legal mechanisms such as norms and pressures from various constituencies. Caremark clearly covers oversight for violations of law or regulation. But what, beyond those two things, might Caremark encompass? What about ethical violations? Or business risk? This Article argues that an expansion of Caremark’s scope to cover some ethical violations and some business risks is consistent with well-established principles of Delaware corporate law. This argument has implications for broader debates on the role litigation should play in corporate governance and the duties corporations owe to society at large
Expert Stakeholder Perspectives on Emerging Technology for Neuroimaging Research with Highly Portable MRI: The Need for Guidance on Ethical, Legal, and Societal Issues
No full textPortable MRI (pMRI) technology, which promises to transform brain imaging research by facilitating scanning in new geographic areas and the participation of new, diverse populations, raises many ethical, legal, and societal issues (ELSI). To understand this emerging pMRI ELSI landscape, we surveyed expert stakeholder views on ELSI challenges and solutions associated with pMRI research
Introduction: Revolutionizing Neuroimaging Research with Highly Portable MRI: Confronting Ethical and Legal Challenges
No full textThe Rise of Counter-Terrorism and the Demise of Human Rights
No full textThis lecture addressed the consolidation and expansion of counter-terrorism norms and institutions since 9/11. The rise of counterterrorism has enabled the consolidation of autocracy, sustained democratic backsliding and undermined the capacity of civil society to function across the globe. The impact on human rights has been extensive and highly detrimental to the most vulnerable individuals and groups across the world. Drawing on my work as United Nations Special Rapporteur on Counter-Terrorism and Human Rights since my 2017 appointment, the lecture shows the hard choices that must be made nationally and globally to reverse these trends
Not-So-Special Solicitude
Get PDFIn a high-profile 2023 case about state standing to sue in federal court, Justice Gorsuch deemed it “hard not to wonder why” the majority said “nothing about ‘special solicitude.’” The silence was indeed surprising, for in a landmark decision several years earlier, the Supreme Court had declared that states were “entitled to special solicitude”—presumably meaning some sort of preferential treatment—“in [the] standing analysis.” And since then, commentators have depicted the concept as permitting opportunistic states to wage ideological crusades in courts across the country, especially through administrative-law attacks on federal government defendants.
But what if “special solicitude” is not so special after all? With a deep dive into appellate caselaw, this Article argues just that. After discussing how special solicitude has faded from explicit prominence in Supreme Court precedent, the Article analyzes the Court’s state-standing decisions to determine whether the concept has exerted implicit influence. To the contrary, the Court has narrowed multiple aspects of justiciability law that state-standing skeptics have long criticized as faulty for the nation’s federalist structure, including in key cases from the last two years.
The Article then catalogues each and every state-standing case from the federal courts of appeals to discuss special solicitude. This examination finds no consensus about what the concept means—but again concludes that it appears to lack doctrinal significance. Courts often deny state standing or pronounce special solicitude extraneous to the analysis. And even where courts purport to apply it, special solicitude rarely if ever makes a dispositive difference in state-standing cases.
At the very least, this Article argues, special solicitude plays a smaller part in federal-courts doctrine than conventional wisdom assumes. Accordingly, scholars and other stakeholders hoping to improve this important area of constitutional law should focus less on special solicitude as a doctrinal matter and more on other areas of potential reform
Race, Racial Bias, and Imputed Liability Murder
Get PDFEven within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.
This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals that imputed liability murder is anything but a fringe subtype of homicide: an astounding 70% of those charged with murder during this period were charged with felony murder, accomplice liability murder, or both. The study also shows that nearly 60% of these defendants were Black, a level of racial disproportionality that is not just intrinsically extreme; it is comparatively greater than levels of disproportionality for other types of murder. The question is, why? The answer lies in part in the structural and social psychological dynamics of imputed liability murder prosecutions themselves, we claim. By reducing prosecutors’ burden to prove the most salient legal indicia of a defendant’s culpability — mens rea, actus reus, or both — and allowing prosecutors to cast a wide and undifferentiated net around almost any homicide, the felony murder and accomplice liability murder doctrines invite prosecutors to base normative charging decisions on subjective, extra-legal proxies, like “dangerousness” and “group criminality.” Multiple studies have shown that decision-makers are more likely to attribute these proxies to Black defendants and, in turn, treat them more punitively. Compounding these dynamics is the racial stereotypicality of the crimes themselves. A separate body of research indicates that felony murder and accomplice liability murder have become so cognitively synonymous with Black defendants that simply shoring up the doctrines’ structural laxity may not be enough to mitigate their disproportionate enforcement.
As states across the country grapple with reforming their felony murder and accomplice liability murder laws, this Article contributes to the ongoing debate about the legitimacy of both doctrines. It also raises critical questions about the racialized enforcement of not just these doctrines but of any doctrine that invites the State to impute criminal liability
Opportunistic Breach of Contract
Get PDFLaw and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We show that, even from a purely consequentialist perspective, disgorgement remedies may be normatively warranted, especially when involving sellers’ breach. Recent experimental evidence revealed that the preferences and reactions of ordinary people are in line with our evaluation of the effects of opportunistic breach