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Is a Website Subject to Title III of the ADA: Why the Text Applies to Only Websites “Of” a Place of Public Accommodation
Get PDFTitle III of the Americans with Disabilities Act (“ADA”) prohibits discrimination involving the “goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” The ADA lists examples that qualify as “public accommodations,” but it does not define the word “place.” As a result, the circuit courts since 1995 have been split over whether a “place of public accommodation” is limited to a physical place. Courts have recently addressed whether websites are subject to Title III and have relied primarily on precedent on the interpretation of a “place of public accommodation.” District courts within the Minority Approach have consistently held that a website is a “place of public accommodation.” In contrast, the Ninth and Eleventh Circuits have held that a website is not a “place of public accommodation” and thus, not subject to Title III. Oddly enough, no court has held that a website is a “service,” “privilege,” or “advantage” of a “place of public accommodation.” This Comment urges courts to subject Title III to only websites “of” a “place of public accommodation.
Patent Inconsistency
Get PDFDespite the promise of efficiency through the use of expert agency adjudication in U.S. patent law, administrative substitution continues to fall short. In a variety of ways, the decade-old system of Patent Office adjudication is simply an additional place to litigate rather than the robust technocratic alternative it was meant to be. These problems have arisen from important defects in the statutory design, but also from the enormous expansion and ascendancy of the Patent Office itself. Moreover, while duplicative litigation over patent validity is recognized and criticized, its scale and scope has eluded detailed empirical analysis until now. This Article documents and measures those ill effects and explains their structural origins. It evaluates varying responses from Federal Circuit and Supreme Court decisions and from regulatory experimentation in the Patent Office itself. The Article concludes with proposals for reform. The analytical framework for reform that is suggested here is especially timely given the incompleteness of judicial and regulatory responses thus far
Sheriffs, State Troopers, and the Spillover Effects of Immigration Policing
Get PDFAs the Biden Administration decides whether to continue the 287(g) program (the controversial program deputizing local law enforcement officers to enforce federal immigration laws), our research shows that the program has broader negative effects on policing behavior than previously identified. To date, debate about the 287(g) program has focused exclusively on the policing behavior of law enforcement agencies like sheriff’s offices that sign the agreements, and on concerns that these signatory local enforcement agencies (“LEAs”) engage in racial profiling. Our research shows that the agreements also negatively affect the behavior of nearby, nonsignatory law enforcement agencies. Using 18 million traffic stops drawn from the Stanford Open Policing Project, we find that the agreements caused state troopers in North Carolina and South Carolina to stop Hispanic drivers more often than White drivers, in order to funnel them into the intensive immigration screening conducted by signatory LEAs at the shared jails. Because trooper agencies did not sign the agreements, statistical associations between the presence of agreements and the differential treatment of drivers by race are not contaminated by unobserved confounding factors. Our identification of these previously unnoticed spillover effects raises important policy questions about the program’s impact and the adequacy of existing legal and administrative controls
Current challenges in the Rio Grande/Río Bravo Basin: old disputes in a new century
No full textThe Rio Grande River traverses 2000 kilometres of the international border between Mexico and the United States. The river and its tributaries are governed by a series of border treaties and institutions, as well as under the domestic laws of each nation. Often lauded for enabling innovative and collaborative governance, in recent years the complicated regime has come under pressure as domestic and international water governance institutions struggle under the strain of climate change, population growth, and other stressors on water supply and demand in the region. This chapter considers three of the major challenges currently facing the Rio Grande River Basin and its riparians: (1) groundwater and ground–surface interactions and related practical and policy implications; (2) engagement with local and regional stakeholders; and (3) Mexico\u27s latest water debt under the 1944 Treaty. It also identifies shortcomings in the regime to address these concerns, as well as innovative responses and solutions that have been crafted at various levels of governance
Groundwater policy and planning
Get PDFGroundwater policy defines objectives, ambitions and priorities for managing groundwater resources, for the benefit of society. Planning translates policy into programmes of action. Both are often part of a wider water resource policy and planning framework, but the specific challenges pertaining to groundwater have traditionally received less attention than surface water.
The terms ‘policy,’ ‘strategy’ and ‘plans’ are used interchangeably in many countries and contexts
Pluralistic Professionalisms: Religious Identity, Excluded Voice, and a Toolkit for the Periphery
Get PDFAssimilation of new entrants into the legal profession has been a signature strain of Carrie Menkel-Meadow’s research. Even if the empirical particularities have since evolved, her pathbreaking research on women lawyers and gendered lawyering processes remain prime examples of socio-legal work on lawyers with important theoretical extensions. For example, in Portia in a Different Voice, her now classic piece from 1985, Menkel-Meadow analyzes how numbers alone are insufficient indicia of feminization within the legal profession. Beyond the description of the state of the legal profession at the time of writing, her argument that we should pay attention to what lawyers do rather than how many of them there are changed a line of scholarship about lawyer demography and demanded that it pay more attention to experience and nuance in what could seem like a critical mass. Similarly, in 1987, while analyzing the assimilation of minority groups, she asks, in productive provocation, “Is assimilation a desirable goal?” to suggest that excluded voices might—even when seemingly included— suffer from everyday exclusion because they do not have access to the kinds of social and economic capital necessary for true inclusion. In another line of research focused on legal institutions and decision-making metrics rather than systems and experiences of lawyers, Menkel-Meadow discusses her now-eminent theory of “process pluralism”: the idea that a range of embedded processes need to merge in client-forward ways to offer meaningful justice. Although Menkel-Meadow’s work on the empirical legal profession has been what has most directly influenced my own scholarly inquiry, this theoretical kernel from her dispute resolution research inspires extending the analyses to new kinds of diversity in the legal profession.
Following the spirit of her research focused on bespoke hybridization, this Article merges these two lines of significant theory across interrelated fields to consider “pluralistic professionalisms”—pluralism in professional values and identity—by focusing on the experience of Muslim actors in contemporary legal landscapes. Although scholarship has reinforced the myriad ways in which identity capital within the legal profession is built and valorized, religion complicates the analysis because it involves the performance of not just an individual’s identity, but also its additional interaction with law’s neutrality and its presumptions—despite enough evidence to the contrary—of secularity. Islam further exposes cleavages in these intersectionalities because of the way this particular religious identity is gendered, racialized, and read, especially in the Global North, often under the violent pretense of “liberal” progress.
In contending with this complicated juxtaposition, this Article argues for paying attention to a particular kind of process pluralism in the creation of professional identity. Part II outlines the ways in which Menkel-Meadow’s scholarship on diversity and identity in the legal profession creates what I refer to as a “toolkit for the periphery” that allows us to consider new kinds of professional entrants and navigations. Part III unpacks the ways in which religious identity and performance complicates the analysis of identity alterity and uses Menkel-Meadow’s process pluralism as a way to consider these conjunctions. Part IV uses data from an ongoing Navigating Identities in Legal Education (“NILE”) project, as well as case law on Islamophobic workplace discrimination, to reveal the ways in which “ideal” or “good” identities of the Muslim lawyer are constructed in post-September 11, 2001 (“9/11”) America. The concluding Part V employs the concept of pluralistic professionalisms to make sense of the data in the previous section and to extend these two seemingly under-connected strains in Menkel-Meadow’s research centering on process pluralism and professional identity. Although the Islamic identity and the experiences of Muslim lawyers are the focal points of this Essay, the argument for professional pluralism—much like Menkel-Meadow’s research—extends beyond the particularities of this specific case
Ethical Negotiation and Postcapitalist Politics: An Essay for Carrie
Get PDFIn a 1983 article, Legal Negotiation: A Study of Strategies in Search of a Theory, Carrie Menkel-Meadow took stock of what was motivating a diverse range of scholars to want to reimagine negotiation theory. She described these negotiation scholars as shaped by the exigencies of their own political moments. Some were lawyers concerned about too much litigation of an unsatisfying quality. Many, however, were concerned more broadly about “the general level of hostility in the world,” even haunted by the possibility that nuclear weapons could destroy all of humanity. Negotiation scholars included “[e]conomists and game theorists . . . concerned that the earth’s limited resources be allocated efficiently and productively,” as well as “[e]thicists . . . concerned that those resources be divided fairly.” Carrie’s own pioneering work would soon establish that a few of these scholars—including those who cared about ethics—approached negotiation through feminist theory.
In 1984, in a pathbreaking and widely celebrated article, Toward Another View of Legal Negotiation, Carrie introduced what she called a problem-solving model of negotiation. She included a footnote with an argument she foreshadowed in Legal Negotiation and that she would develop in subsequent years. Her position was that problem-solving negotiation should enact a feminist ethic of care. From this perspective, negotiation is not only a set of professional tools but a deeply ethical practice—a means of cultivating self and social relations differently.
In this celebration of Carrie’s contributions to feminist theory, I suggest that Carrie’s early work in negotiation created an opening for a radically caring and democratic practice of negotiation—one whose underlying feminist values of interdependence and connectedness implicitly and explicitly challenge capitalist logics of competition and accumulation. Speaking broadly, she told her readers that “[t]he goal, rooted in experience, [is] achieving a world without domination.” Echoing the feminist turn in critical legal studies, of which she was an important part, Carrie called for a world without patriarchal domination but also without domination produced through socioeconomic relations.
Contextualizing this project, I will also suggest that negotiation theory, as it mainstreamed in legal and popular practice and notwithstanding Carrie’s inspiration, has not yet embraced the radicalism she envisioned, but rather, in notable ways, has turned away from it. And yet the legacy of Carrie’s visionary work as a set of possible prescriptions remains. As offering and as inspiration, Carrie’s work awaits interpretations and reimaginings by people shaped by the exigencies of their own political moments. In the spirit of such reimaginings, undertaken in the present tense and as its own way of honoring her work, I read Carrie’s scholarship together with the work of J.K. Gibson-Graham, the pen name of feminist Marxist economic geographers Katherine Gibson and Julie Graham, and their collaborators. By means of this reading, I endeavor to show how Carrie’s work holds space today for a feminist praxis of negotiation—a praxis organized around the “ethical question of our interdependence with others and its implications” rather than the coordinates of “growth” and distribution” more familiar within the field of negotiation Carrie so vitally helped seek to change
Essential Property
Get PDFFor a sizable swath of the U.S. population, incomes and wealth are insufficient to cover life’s most basic necessities even in the most ordinary of times. A disturbingly resilient explanation for this state of affairs rests on the view that resource inequities are avoidable through self-reliance, a stance that invites observers to see people in poverty as morally suspect. This Article advances a counterview in contending that the widespread lack of essential resources did not simply arise naturally via individuals’ life choices but instead has been, in very meaningful part, created and perpetuated by our system of property laws.
The proposition that property—a social institution—generated the extant mismatch between incomes and wealth, on one hand, and critical expenses, on the other, is frightening: it reveals that we, the people, collectively and over time fashioned this staggering predicament out of whole cloth. But this same proposition is also cause for hope. If property laws helped create this predicament, perhaps property laws can help solve it. Against this backdrop, the Article charts a justice-inspired course for the reformation of property’s background rules. This course is centered on a series of norms appropriate for property governance in a free and democratic society, including circumstance sensitivity, anti-discrimination, realistic opportunity, and legal interdependence
The Uniform Commercial Code Survey: Introduction
Get PDFThe survey that follows highlights the most important developments of 2021 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions
It’s Time to Give Companies Standalone Climate Ratings
No full textInvestors are increasingly using ESG ratings for their investment decisions. But we need to assign companies a stand-alone rating focused on climate risk that’s distinct from the ESG rating system. Such a climate-specific rating can distill complex information regarding a company’s carbon footprint and climate risk into an intuitive, user-friendly format, while avoiding the flaws that currently mar ESG ratings. The “super-wicked” problem of climate change is so urgent and far reaching that it deserves its own rating, one that eschews the methodological complexities and legal challenges of melding together E and S and G. A climate-specific “C-rating” would empower investors and c-suites alike to make the climate-conscious choices that markets are telling us they want