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POISON! An Africana Legal Studies Investigation into Enslaved Africans and Their Deadly Roots
Full text linkUneven Scales: How the Symbiotic Relationship Between Prosecutors and Judges Results in Unfair Criminal Proceedings
Full text linkExplaining Constitutional Copying as an Idealogy: Argentina\u27s Yankee-mania Under President Domingo Sarmiento (1868-1874)
Full text linkForeign constitutional models can transform a country thanks to the power of ideology. The comparative constitutional literature maintains that successful constitutionalism requires credible commitments to essential rules by all major political actors so that those out of power can avoid persecution that will drive them into rebellion, and those in power can feel assured that if they relinquish power, the opposition will respect their core interests. The literature also assumes that the process of reaching credible commitments is a slow one, but that over time civil society, courts and government bureaucracies will strengthen the commitments and act against unconstitutional power grabs. Foreign legal transplants are not seen as a tool toward credible commitments. Much scholarship on the transplant of legal rules assumes that rules allocating political power will be especially resistant to transplantation, and no scholarship theorizes how such transplants might take root—though the transplants clearly exist. This article explains how a constitutional transplant may sometimes establish the credible commitments necessary for stable constitutionalism. Rapid adoption of a constitutional transplant becomes plausible if its adoption is understood as an ideology—the use of ideas for social domination. The chance to become known as a leading constitutional exponent or lead a political movement creates incentives for ideological entrepreneurs to invoke attractive foreign models, especially when existing ideologies don’t align with economic opportunities or social reality. These entrepreneurs do not necessarily promote a text; instead, they market a package of ideas, values and approaches, which combined with the foreign text get embodied as legal rules. Indeed, if the entrepreneurs are successful, constitutional debates may sometimes become unanchored from the recipient country’s text if its existing text does not fully match the model. Credible commitments emerge from the model, not the text. But most important, if the ideologist obtains power, then a selfreinforcing constitutional commitment may result. The ideological entrepreneur in power cannot easily escape the rights and institutions created by their own ideology and must protect the rights of their political opponents accordingly. Argentina in the 1860s shows how elites may harness a foreign constitutional model to realize effective credible commitments. Sometimes dubbed “yankee-mania,” an ideology took root insisting that Argentina needed to treat the U.S. constitutional model as binding. Domingo Sarmiento, who served as President from 1868-1874, built much of his political career as the best-known ideological entrepreneur boosting the U.S. model, sometimes going to farcical extremes. By the time Sarmiento became President, the U.S. model already dominated Argentine constitutional debate, and on the question of emergency Presidential powers during civil unrest, Argentina’s constitutional text, which actually came from Chile’s on this issue, simply got ignored. But while Sarmiento constantly invoked the model, it also constrained him in the suppression of rebellions, particularly when the Supreme Court ruled against him, and under the U.S. model he needed to accept its decision. Every ideology has its limits, and sometimes Sarmiento overreached in his invocation of the U.S., as when he turned to a departing (and intellectually unimpressive) U.S. ambassador to explain the martial law powers of Lincoln. But the ideology of yankee-mania worked to establish credible commitments. Argentina’s adoption of the U.S. model is important not just for Argentine historiography and for how Argentina attained the stability for late 19th century economic growth, but for understanding constitutional transplants broadly, particularly for countries at moments that demand institutional change
150 Years of Detox: How Inadequate Dietary Supplement Regulation Undermines Consumer Safety in the Weight Loss Industry
Full text linkPrior to the passage of the Pure Food and Drug Act of 1906, the American food and drug market was a proverbial “wild west,” fraught with charlatans, snake oil salesmen, and manufacturers cutting costs at the expense of consumers. The Pure Food and Drug Act, along with the Food, Drug, and Cosmetics Act of 1938 took steps to address this problem, creating the modern food and drug regulatory scheme. While American food and drugs are markedly safer now than they were 150 years ago, the Dietary Supplement Health and Education Act of 1994 has prevented dietary supplement safety from keeping pace. A number of consumer crises over the past thirty years—particularly the ephedrine alkaloid crisis—demonstrate that the current dietary supplement regulatory scheme does not adequately protect consumers. This Note details the history of why dietary supplements are regulated as foods. This Note then parallels the current dietary supplement trend of weight loss and detox teas with the ephedrine alkaloid crises to demonstrate the dangers of lax safety regulations. Finally, this Note argues that the Dietary Supplement Health and Education Act obstructs the Food and Drug Administration’s ability to protect American consumers, contravenes the original purpose of food and drug regulation, and must be updated to effectuate these goals
People Power and Police Policy: How Denying Intervenors in Pattern-or-Practice Police Litigation Undermines Police Accountability
Full text linkLegal Scholarship Through the Lens of Generative AI, Darkly
Full text linkUnlike traditional search engines limited to connecting users to original source content, generative AI systems produce new, ad-hoc sources of information derived primarily from patterns in their training data and information fed into the system as context. As such, generative AI systems can play a mediating role between users and information sources, especially when these systems are integrated into databases and web search engines. This article examines how GPT-4 (ChatGPT) interacts with law review articles, revealing its unreliability in summarizing them independently but notable accuracy when provided with full-text input. Retrieval augmented generation (RAG) offers a potential solution for improving AI accuracy in a more automated way, yet concerns persist about algorithmic bias, authors’ rights, and the impact on legal scholarship. Law librarians must carefully consider these factors when determining how their institutions’ scholarly work is accessed and used by AI systems
Women and Corporate Governance: Time Horizons and Stakeholder Analysis
Full text linkThis Article will build on my earlier work with Naomi Cahn and Nancy Levit to use the fate of women in individual companies to shine new light on the temporal orientations underlying corporate and labor and employment law and provide a basis for a new foundation for a combined approach. This Article will first explain why the shift to shareholder primacy, and the accompanying emphasis on short-term results tied to high stakes bonus pay, disproportionately short-changes female employees, whether in management or in line positions. The Article will maintain that it is not the shift to shareholder primacy in isolation, but rather the combination with competitive pay and with the availability of greater rewards for manipulating metrics that produce disadvantages for women. Second, the Article will review the changes since 2016, showing that, in contrast to the period from the early nineties through the Great Financial Crisis in which shareholder primacy took hold, women’s fortunes in upper management have improved. The Article will then consider the reasons why women’s fortunes may correlate with greater skepticism toward shareholder primacy. Finally, the Article will conclude with an argument for the alignment of women’s interests with corporate interests in reinstating the rule of law and longer-term perspectives in business decision-making
Anticipating a New Modern Skidmore Standard
Full text linkIn Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference but blessed giving agency interpretations of statutes “respect” or “weight” under the Skidmore standard during judicial review. Yet, the Court in Loper Bright offered only a few limited references regarding Skidmore as a doctrine, with little guidance regarding what judicial review under Skidmore ought to look like. The Court might not have felt the need to elaborate, as courts have been applying Skidmore for eighty years. As applied, however, Skidmore is a more complicated doctrine than many people realize. An extensive Skidmore jurisprudence exists, with nuances that at first blush may not seem entirely square with some of the assumptions and reasoning in Loper Bright. The purpose of this Essay is to explore the pre-Loper Bright status quo of Skidmore review and anticipate some of the questions about Skidmore that will inevitably arise as courts apply it in future cases
