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Centralizing Pharmaceutical Innovation
Get PDFThe United States has a mostly decentralized system for promoting new medicine development. By offering patents and regulatory exclusivities, the government incentivizes pharmaceutical companies to invent and bring to market new medicines. Although this development model offers benefits for promoting innovation, it comes at a cost: Market-based incentives lead companies to prioritize research and development (“R&D”) for medicines that offer a safe path to profitability, as opposed to those that offer the greatest social benefit. In particular, pharmaceutical companies are reluctant to invest in R&D for critically-needed antibiotics and infectious disease vaccines—both of which are difficult to develop and provide uncertain financial returns. This Article proposes that the government oversee the development of needed “infrastructure-adjacent medicines”— medicines that can help prevent future collapses of the public healthcare system and mitigate major economic harm. In addition to boosting internal R&D in such critical areas, the government could directly support innovation by exclusively licensing promising drug candidates from small- to mid-sized entities or by purchasing small biotechnology companies on the open market. When suitable private partners are not available, the government could oversee the final stages of development and retain control over the resulting intellectual property rights. This approach would allow private-sector pharmaceutical development to continue to flourish while filling a critical public health gap
Just Don’t Do It: Why Cannabis Regulations are the Reason Cannabis Businesses are Failing
Get PDFPart I will provide a historical overview of the cannabis plant and our country’s experience with it prior to the election of President Richard Nixon. It is at that point, the early 1970s, that the current federal cannabis scheme began to take shape. Sections I.A though I.C will discuss the inception of the War on Drugs during the Nixon Administration and examine the subsequent social movement that led President Reagan to revamp and expand the War on Drugs throughout the 1980s.
The legal framework for federal cannabis regulation has largely remained stagnant since the Reagan Administration. Nevertheless, the federal stance on cannabis, influenced in recent years by fluctuation in Executive Branch law enforcement polies, has shifted significantly. Part II will set out the current system of federal regulation and discuss the variable enforcement policies that have allowed the cannabis industry to explode despite the continuing federal prohibition.
Due to political variation among the states and the protracted process of reform, the cutting edge of cannabis regulation is in an incredible state of flux, and the nation-wide regulatory scheme is a jumble of policy choices; many of which are directly opposite to those of neighboring states. In attempt to impose some order on the complexities of state cannabis regulation, Part III will canvas the current legal status of the substance in the United States, including a state survey and an in-depth exploration of the various policy decisions facing states that are considering reform. This portion will also examine some recent, incremental shifts in the federal laws that overlay what is primarily a state level regulatory scheme.
Even after looking to the past and the present, the future remains uncertain. Many significant impediments to the reform movement remain in place. For example, even in states where cannabis has been recreationally legalized, local governments have retained (and exercised) the power to prohibit the substance within their jurisdictions. Part IV will contain a discussion of this and similar roadblocks to reform that lurk in the background of the dynamic environment surrounding cannabis regulation in the United States.
Through understanding the complex history of cannabis regulation and legalization, the current legal landscape, and the existing roadblocks to reform, Part V will discuss how the legal and regulatory landscape causes so many cannabis companies to fail. Cannabis reform needs to happen in order for cannabis companies to become profitable. For now, the cannabis legal regime creates significant hurdles that result in failing companies with little chance of success
Commandments Before Amendments: The Ministerial Exception & How the Court Prioritizes Religious Rights Over Other Constitutional Protections
Get PDFImportance and Interpretive Questions
Get PDFIn its October 2021 Term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies. The doctrine has been almost universally assailed on the right by scholars who argue that the doctrine is inconsistent with textualism and on the left by those who claim it is a recently invented, functionalist tool devised to reach antiadministrativist results. One can explain at least some of the cases, however, in a way that constructs a coherent doctrine in which importance has a significant but narrow role in resolving interpretive questions involving ambiguity or uncertainty.
Thus understood, such a doctrine could be defensible, if not as a substantive canon, then as a kind of linguistic canon. Unlike other linguistic canons, such a canon would be about how people and lawmakers use language to accomplish results in a circumscribed range of contexts—namely, the delegation of important authorities, whether to other private actors, to government actors in the Constitution, or to government actors in the executive department. But unlike substantive canons, it would not relate to a substantive value encoded in the Constitution or in longstanding tradition. Existing empirical work about how legislators legislate, and insights from the philosophy of language, suggest that such a doctrine may be consistent with textualism, and historical research further reveals that a canon of this type may be a longstanding feature of constitutional and statutory interpretation in related contexts and in agency law. More provocatively, these same intuitions about importance may explain some substantive canons that are otherwise difficult for textualists to justify
Legal Endearment: An Unmarked Barrier to Transforming Policing, Public Safety, and Security
Get PDFThe problems of racialized policing have come into renewed focus over the past decade. The advent of viral bystander videos has not only forced a popular confrontation with moments of both routine and extraordinary policing violence but also sparked protests, uprisings, and grassroots movements to challenge current practices in policing and determine what must be done to transform it. And yet, even after the mobilization of one of the largest racial justice movements in American history, transformative change remains elusive. This Article offers an answer to this puzzle by foregrounding White people’s collective relationship with policing and describing how this relationship colors current debates on how to best address policing’s racial disparities.
The Article asks: “How might we reconcile White people’s articulated commitments to racial equality with their continued acquiescence in and support for a system of policing that continues to produce such stark racial disparities?” I answer with the theory of legal endearment, which suggests that groups who benefit disproportionately from systems of legal power tend to develop critical attachments to the institutions that maintain such unequal arrangements. For White people, policing is one such institution. Their attachment to policing provides at least a partial explanation for why meaningful police reform has been difficult to achieve.
White people’s legal endearment results from four significant and interrelated aspects of their relationship to policing: the experiential, the symbolic, the structural, and the social. First, unlike many people of color, White people generally believe that police exist to “serve and protect” them because that is their general experience of policing. Second, whereas Black people and other people of color have had to worry about how policing positions them symbolically as criminally suspect and dangerous, White people generally have not. Instead, White people have largely benefited from their positive symbolic positioning as law-abiding and innocent. Third, policing responds to and reproduces a broader set of structural arrangements—including racially segregated spaces and social spheres—that have benefitted White people through the maintenance of White towns, suburbs, and neighborhoods, acting to racially circumscribe access to material resources. Finally, the multiple ways in which White people are socialized to ignore the material realities of race and to view race through the prism of colorblindness facilitates an affective relationship between White people and the police. By taking stock of these dimensions of White people’s relationship to policing and considering how these elements contribute to legal endearment with the police, we can begin to understand how legal endearment has operated as an unmarked barrier to achieving transformative police reforms
As Punishment for Arrests: Involuntary Servitude Under the Housekeeping Exception to the Thirteenth Amendment
Get PDFThe Thirteenth Amendment reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Yet, in contemporary American jails and prisons, pretrial detainees have been forced to perform work for these carceral facilities despite not being convicted of a crime. When tasked with assessing the constitutionality of such pre-conviction labor policies, courts employed a narrow reading of the Thirteenth Amendment and ruled that jails and prisons can compel pretrial detainees to perform maintenance and operational tasks under the judicially-created “housekeeping exception.” In this Note, the author delves into the historical development and courts’ modern applications of the housekeeping exception and analyzes how the exception undermines the purpose and text of the Thirteenth Amendment. The author then advocates for both judicial and legislative action to overturn or, alternatively, limit the housekeeping exception, thereby preventing further Thirteenth Amendment violations within the U.S. penal system
The Seven Essential Law School Simulation Courses
No full textAs we mark the ten-year anniversary of the American Bar Association’s six-credit experiential learning requirement and the launch of the NextGen bar exam, it is critical for U.S. law schools to conduct rigorous assessments of their experiential education curricula. While most law schools now offer students meaningful opportunities to develop lawyering skills in clinics and field placements, there is much less consistency in their simulation course offerings. Simulation courses are a critical component of experiential legal education. While students in clinics and field placements gain valuable, realistic experience addressing the issues presented by their actual clients, those issues may sometimes be atypical and unlikely to recur in the students’ law practices after graduation. Simulation courses complement clinics and field placements by engaging students in a curated set of role-playing exercises intended to expose them to scenarios they will commonly encounter as practicing lawyers. They provide students with the opportunity to practice core lawyering skills and receive feedback on their performance on a regular basis. This Article proposes a set of essential simulation courses that every law school in the United States should offer its students. The timing is right for this proposal both because of the upcoming changes to the content of the bar exam—which will begin in 2026 to assess test takers’ proficiency in lawyering skills in addition to their knowledge of substantive law—and the growing body of empirical data on critical competencies for new lawyers. My goal in developing the curricular recommendations set forth herein is to identify the simulation courses most closely aligned with the lawyering skills that will be tested on the NextGen bar exam and the key competencies that leading studies have found critical to the success of new lawyers. In doing so, I consider the results of a detailed review of the experiential curricula of seventeen ABA-accredited law schools, which revealed both similarities and inconsistencies among law schools’ current simulation-course portfolios. My analysis yields the following list of simulation courses that will work together well to prepare students for the NextGen exam and their early years of legal practice: (1) advanced legal research, (2) trial practice, (3) appellate advocacy, (4) transactional drafting, (5) alternative dispute resolution, (6) interviewing and counseling, and (7) legal ethics. In addition to clinics and field placements, these courses should constitute the pillars of a law school’s experiential learning program
Interpreting the Ambiguities of Section 230
Get PDFAs evidenced by the confusion expressed by multiple Justices in last Term’s Gonzalez v. Google, there is little consensus as to the scope of Section 230, the law that broadly immunizes internet platforms from liability for third-party content. This is particularly striking given that no statute has had a bigger impact on the internet than Section 230, often called the “Magna Carta of the internet.”
In this essay I argue that Section 230, despite its simple-seeming language, is a deeply ambiguous statute. This ambiguity stems from a repeated series of errors committed by Congress, the lower courts, and the Supreme Court in the drafting, enactment, and early judicial interpretation of the statute.
This diagnosis, which I lay out in Part I, sets the stage for Part II, in which I consider three potential paths forward for the judicial interpretation of Section 230. In particular, I focus on a novel interpretative approach, by which courts would interpret Section 230 immunity narrowly in order to spur large technology companies to lobby Congress to act, thereby forcing Congress to clarify the scope of platform intermediary liability. But this approach carries substantial risks of disrupting the internet in the time between the judicial reinterpretation of Section 230 and Congress’s response, and thus represents at best an imperfect solution to the legislative and judicial mistakes that attended Section 230’s origins