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Racial Equality, Religious Liberty, and the Complications of Pluralism
Get PDFConstitutional law scholar Laurence Tribe once described due process and equal protection as “a legal double helix.” By this, he meant that protections for substantive liberties coupled with principles of equal treatment created “a single, unfolding tale of equal liberty and increasingly universal dignity.” In his view, equality and liberty were mutually constitutive and “center[ed] on a quest for genuine self-government of groups small and large.” Although this optimistic account of the nation’s constitutional DNA is reassuring, Professor Sahar Aziz’s new book on “The Racial Muslim: When Racism Quashes Religious Freedom” reminds us that the double helix can unravel, so that freedom and equality become mutually destructive. Far from enjoying self-government, some minority groups have seen that “racism intersects with religion to racialize a religion’s followers and consequently exclude them from the panoply of religious freedom.
Professor Aziz’s book raises important questions about whether a narrative rooted in race and racialization fully captures the complexity of the Muslim experience. It is not clear why race—as opposed to traits like national origin, immigration status, and religion—should be the dominant force that drives government policy, private bias, and Muslims’ self-conceptualization. This is especially true given the tremendous internal heterogeneity of the Muslim population as well as the rise of powerful new ways to surveil and control many of its members through immigration enforcement. Framing the Muslim community in racial terms potentially obscures the complicated dynamics associated with proliferating differences and the anxiety around pluralism they engender. That anxiety in turn can prompt a retreat into individualism. As a result, Americans “hunker down” in the face of growing diversity, even as courts retreat from equality jurisprudence and turn to seemingly universal principles of personal liberty. The challenge is to find a way to restore a sense of shared purpose that remains respectful of distinct histories and identities
A Theory of Interests in the Context of Hybrid Warfare: It\u27s Complex
Get PDFWe will begin with a discussion about how the hybrid warfare context is different from other conflict contexts. We will describe some complexity aspects that make hybrid warfare challenging to negotiators. We will then discuss whether classical negotiation theory prescriptions apply to a hybrid warfare context, especially regarding interests. We will argue that these prescriptions related to classical negotiations are unlikely to work in this context. We will focus our analysis on a subset of hybrid warfare attacks, consisting of short-term, time-sensitive, high-risk crises, where negotiations are possible and necessary, such as ransom demands, rather than on hybrid warfare situations which state actors, diplomats, or security professionals are called to manage.5 We will explore how negotiators can better deal with such negotiable crises. We note that such events are likely part of a broader hybrid warfare strategy, and therefore their negotiated conclusion is not the same as the end of hybrid warfare hostilities. Nevertheless, the costs and risks to human life make engagement necessary. We will conclude with suggestions about how negotiators might handle such hybrid warfare crisis situations and that most classical interest-based advice does not help. We hope that our thoughts on how individual negotiators can approach hybrid warfare will contribute to a growing understanding of how to defend our interests in this complex environment
Stricter Community Supervision, More Recidivism? An Ego-Depletion Theory
No full textCan stricter community supervision (i.e., parole and probation) requirements lead to an increase in recidivism? I investigate this question by constructing a law enforcement model in which individuals can incur costs to increase their degree of self-control. The analysis reveals that stricter community supervision can, in fact, increase recidivism if these investments lead to ego-depletion. This possibility therefore warrants empirical investigation, and policy makers ought to be mindful of it when determining the strictness of community supervision conditions
False proxies for enforcement distortions in “policing for profit” research
No full textConcerns about law enforcer incentives being affected by a desire to raise revenue for their departments or other governmental units has led to considerable research. Part of this scholarship attempts to identify a causal relationship between monetary incentives and distortions in enforcer behavior. Because enforcer behavior is often unobservable, they rely on proxies like arrests or citations to infer distortions in behavior. I construct a simple model which reveals that in general there is no meaningful relationship between these measures and enforcer incentives or behavior, and therefore these measures may be ‘false proxies’
The Disembodied First Amendment
Get PDFFirst Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - dubious precedents, doctrines, assumptions, and theoretical grounds that have elevated corporate and commercial speech rights over the last century. This Article offers several ways to deconstruct these artifices, re-tether the First Amendment to natural speakers and listeners, and thus reclaim the individual, political, and social objectives of the First Amendment
Defeating De Facto Disenfranchisement of Criminal Defendants
Get PDFIn a democracy, voting is not only an important civic duty but also a right that governments owe to their citizens. However, by operation of law, forty-eight states deny voting rights to individuals based on criminal convictions. Activists and scholars attack de jure disenfranchisement as an improper collateral consequence that disproportionately impacts people of color. Although recent years show substantial reforms to reenfranchise defendants, an estimated 5.17 million defendants remained ineligible to vote in 2020. While efforts to address de jure disenfranchisement remain necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants who have the legal right to vote but are prevented from exercising it. De facto disenfranchisement applies to defendants who have regained their voting rights as well as defendants who have never lost their rights. Although de jure disenfranchisement excludes millions from voting, confusing restoration requirements, lack of information, misinformation, and physical barriers prevent millions of eligible voters from voting. For example, while most of the nearly 750,000 people in jail have the right to vote, they face informational and access hurdles to exercising their voting rights. Moreover, distrust of the political system and fear of arrest for voting exacerbates the issue. As with de jure disenfranchisement, de facto disenfranchisement disproportionately impacts people of color. As states decide to restore voting rights to more individuals, de jure disenfranchisement will fade, but de facto disenfranchisement threatens to keep the same restrictive policies alive. As a result, more progress is necessary to go beyond merely providing criminal defendants with the right to vote and instead actually empowering them with the ability to vote. This Article addresses the problems associated with de facto disenfranchisement. Further, this Article suggests and analyzes the national, state, and local reforms and practices necessary to ensure that defendants with voting rights have meaningful notice of their rights and access to voting
Creating Persistent Law Review Article Links with Digital Object Identifiers
Get PDFA case study for how to use digital object identifiers (DOIs) to make online journals more accessible and improve their site user reports
Oil, Trees, and Water: Evaluating the Transition from Natural Property Rights to Property Conventions
Get PDFIn his new book, Natural Property Rights, Eric Claeys offers a property theory grounded in a person’s ability to make productive or purposive use of a resource and the requirement of clear communication about the extent of a person’s claim to that resource. This Article illustrates some of the normative and practical advantages of Claeys’s theory by using it to explicate three property disputes that have arisen in Louisiana concerning highly contested natural resources—oil, trees, and water. The Article argues that Claeys’s theory illuminates a major focal case in the development of Louisiana’s law of the obligations of neighborhood, might have produced a more satisfying outcome in a leading case concerning the usufruct of timberlands, and could help the State of Louisiana, private landowners, and recreational sportsmen resolve disputes over ownership of submerging land and water-based access on Louisiana’s disappearing coast
The Future of Natural Property Law: Comments on Eric Claeys’s Natural Property Rights
Get PDFProfessor Eric Claeys is among the most thoughtful modern proponents of natural property rights. His new book, provided to conference participants in draft form, is typical of his rigorously analytical approach. It is an impressive articulation of a natural rights-based account of property. It significantly advances the debate over natural rights and should be taken seriously even by those who do not find it entirely convincing.
There are real-world political stakes in abstract-seeming questions of property theory because natural rights are often deployed to limit government regulation of property. Natural rights contrast with positivist accounts that locate the content of property rights in the substance of positive law. Where property rights come from the State, the State has broad authority to reconfigure those rights. Natural rights theorists, like Claeys, want property to be a bulwark against regulation and so insist that property has a pre-political core.
That core is deeply contested, however. For rights to be “natural,” they must apply widely, if not universally, accepted, or at least be derivable in the abstract. To operate at this level, they generally underdetermine the substantive content of property law. Reasoning from natural rights, therefore, often devolves into contingent consequentialist or utilitarian arguments that look anything but natural.
Often, natural law is deployed to rationalize existing legal doctrines and rights. But this can sometimes feel like a bit of a failure of imagination, assuming aspects of law are necessary or inherent when in fact, they may be quite contingent. If natural law reasoning can defend even dramatically different substantive property rights, it becomes worryingly thin as a justificatory enterprise. It risks sliding into outcome-driven and conclusory analyses.
One way to explore the limits of natural rights reasoning is to see whether natural rights reasoning could be used to defend a radically different set of property institutions. Instead of looking anthropologically at different communities around the world or historically at different property arrangements in our own legal history, it is perhaps interesting—or at least entertaining—to consider how natural rights theorists in the future might defend a transformed property law. What follows, then, is a thought experiment—an Article from the perspective of a fictional future. It is intended to explore whether natural law actually imposes limits on the substantive content of imagined property rights of the future. If not, it should serve as a caution for the use of natural law to justify the property regime we have today
Black and Blue Police Arbitration Reforms
Get PDFThe racial justice protests that engulfed the country after seeing a video of the appalling killing of a Black male, George Floyd, by a Minnesota police officer in 2020 has led to a tremendous number of questions about dealing with racial issues in policing. Similar concerns arose a little more than fifty years ago when police unions gained power to respond to the civil rights protests occurring during those times by establishing strong protections for their officers in light of brutality claims. This rhythmic progression of protests and union responses is destined to continue without any lasting reforms focused on addressing workplace discipline for police officers. Instead, after Floyd’s death, several politicians and public employers, including many of the police leaders in Minnesota, complained that their police disciplinary actions prove ineffective when police unions appeal to labor arbitrators who reverse disciplinary actions approximately fifty percent of the time.
This attack on labor arbitrators proceeded at a breakneck pace as Minnesota passed legislation and other states have considered similar actions to prevent the parties from selecting arbitrators. The assumption guiding these changes reflects an unsubstantiated claim that police labor arbitrators decide in favor of officers approximately half the time so they can continue to be selected by the parties. The acceptance of this attack on police arbitrators reached a crescendo with an October 3, 2020 call for reform by the editorial board of the New York Times arguing that labor arbitration should be abolished in all police disciplinary matters.
Empirical studies suggest that police disciplinary actions warrant reversal by arbitrators due to department errors and procedural limits imposed by civil service and union contract provisions. Arbitrators must adhere to these limits in proceedings offering little public transparency based upon parameters set by the parties. After seeing little to no literature defending police arbitrators, this Article embraces police arbitration and offers reforms that give Black police officers a voice in an overall more transparent process. This Article also proposes that the parties negotiate agreements to consider public values to deliver a win-win result to transform what can be understood as just cause for a disciplinary action in a police labor arbitration where race matters