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Mobility Matters: Where Higher Education Meets Transportation
No full textHigher education has long been hailed as the key to social and economic mobility. And yet, mobility itself is one of the greatest barriers to equity in higher education. Although scholars and policymakers have thus far paid scant attention to the role of transportation in higher education, this Article establishes why that oversight undermines educational equity.
Grounding its arguments in both interdisciplinary literature and rich original data from a multi-year mixed-methods research study, this Article demonstrates how transportation law and infrastructure affect college completion, disproportionately hindering completion for students of color. It further argues that higher education law and policy exacerbate, rather than alleviate, systemic transportation barriers for students, reinforcing education inequities.
This Article adds important dimensions to scholarship on both transportation and higher education. By focusing on the interaction between two structural systems, it offers a unique lens through which scholars can understand the complex landscape of higher education law. Finally, this Article offers education policymakers a range of policy and programmatic changes affecting transportation that can advance higher education equity
Physicians Spreading Medical Misinformation: The Uneasy Case for Regulation
No full textPhysicians have played a surprisingly prominent role in the current “infodemic” of false and misleading medical claims. Yet, state medical boards, the governmental agencies responsible for professional licensure and oversight, have sanctioned remarkably few physicians. Pushing back against the widespread criticism of medical boards for insufficient action, this Article questions the overall suitability of licensure regulation to police medical misinformation. First, uncertainty exists about medical boards’ jurisdiction and legal authority. Many misinformation claims have involved physicians communicating publicly, not while treating patients. Given the primarily patient-centered legal and ethical frameworks governing the practice of medicine, serious challenges arise in making legally cognizable the wrongs arising from physicians, acting outside a doctor-patient relationship, spreading medical falsehoods to the community.
First Amendment barriers to restricting physician speech add further complications. To date, most scholarly commentary has focused on whether medical boards can navigate around constitutional concerns. The implicit assumption of much of this work is that, but for the First Amendment, the case for medical board intervention remains very strong. Taking a different approach, this Article delves deeper into additional limitations that, regardless of the First Amendment, cast considerable doubt on the prospects for optimal licensure regulation. Medical boards remain poorly designed for combatting physician-spread misinformation, suffering from professional bias in their composition, starved resources, time-consuming and reactive procedures, opacity, and insufficient institutional resilience and independence. Moreover, because of the difficulty in defining medical misinformation with precision, wide discretion is inevitably left to medical boards in targeting certain claims and particular physicians. This introduces serious risks that medical boards will inevitably overreach and conflate unorthodox, yet potentially innovative medical claims, with misinformation or exercise disciplinary powers for anti-competitive reasons.
Further advancing the literature, this Article also synthesizes data on disciplinary proceedings in the three largest states—California, Texas, and Florida—to provide a more comprehensive accounting of how medical boards are responding to physicians spreading COVID-19 misinformation
Repugnant Precedents and the Court of History
No full textAged Supreme Court precedents continue to tolerate many practices that would shock modern sensibilities. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very cultural shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot genuinely explain what ails societally outmoded decisions. Even for justices inclined to condemn these embarrassments in less clinical terms, it is unclear what qualifies courts to make universalist claims about contemporary American values.
The Court recently sidestepped these difficulties by insisting that one of its most reviled decisions had been “overruled in the court of history.” In substituting rhetorical flair for analytical precision, however, the court-of-history trope threatens to destabilize the Court’s doctrines of horizontal and vertical precedent. This Article urges greater normality in implementing perceptions of national ethos. It first defends the inquiry’s legitimacy by recovering a longstanding judicial tradition of pronouncing specific practices abhorrent to modern cultural norms. It then underscores the project’s stakes by identifying an assortment of precedents that trudge along as ethical outcasts. After highlighting several tangible and expressive harms that these decisions can still inflict, I propose that the Court integrate its ethical judgments into the existing stare decisis framework. And I challenge the Court’s presumed incapacity to dislodge vestigial precedents. These relics may be difficult to pry loose, but we are not stuck with them forever
Sorting Bugs and Features of Mass Tort Bankruptcy
No full textIn 1997, after two years of study, the National Bankruptcy Review Commission recognized bankruptcy’s potential as a forum to address mass tort problems. It emphasized, however, that Congress needed to do much more to ensure due process, address major risks of under-compensation and inconsistent compensation, and reduce uncertainty about the lawfulness of these cases. United States Supreme Court cases invalidating particular limited-fund class actions raised the stakes, casting doubt on certain analogous bankruptcy practices.
Congress adopted neither the Commission’s proposals nor others on the topic. Mass tort bankruptcy practice continued without legislative clarifications or improvements, culminating in recent high-profile and controversial cases.
Revisiting earlier reform discussions helps reveal how much bugs, rather than features, drive some mass tort bankruptcies. Defendants gravitate to bankruptcy to do extraordinary things that have weak statutory and constitutional support and are in tension with principles of due process, not to mention federalism and separation of powers. The design of mass tort bankruptcies also tends to blunt the effective operation of standard Chapter 11 protections meant to empower individual creditors—tools that often are cited as making bankruptcy “better” for mass tort than other aggregate litigation fora. That makes the system overly reliant on group representation measures in mass tort cases in ways that are inconsistent with both bankruptcy law and constitutional principles. The analysis here invites skepticism about whether the system can lawfully and fairly deliver the level of global resolution that debtors and their co-defendants demand
Fake News and the Tax Law
Get PDFThe public misunderstands many aspects of the tax system. For example, people frequently misunderstand how marginal tax rates work, misperceive their own average tax rates, and believe they benefit from tax deductions for which they are ineligible. Such confusion is understandable given the complexity of our tax laws. Unfortunately, research suggests these misconceptions shape voter preferences about tax policy which, in turn, impact the policies themselves.
That people are easily confused by taxes is nothing new. With the rise of social media platforms, however, the speed at which misinformation campaigns can now move to shape public opinion is far faster. The past five years have seen a dramatic shift in the landscape of false information and scholars in a variety of disciplines, from law to psychology to journalism, have explored the increasing influence of fake news.
Building on this burgeoning literature, this Article is the first to examine the incidence and impact of fake news on tax law. We analyze a unique dataset of tax stories flagged as “false” or “untrue” by reputable, third-party news sources. We use this dataset to explore common themes in fake tax news, as well as the ways tax laws’ complexity contributes to spreading false information. We then offer recommendations for how tax administrators and policymakers can combat these misinformation efforts. Specifically, we argue that insights from the literature on fake news can and should inform how administrators disseminate true tax information to the public. Further, understanding what types of tax laws are easily misunderstood or subject to manipulation should inform substantive tax policy design
Turducken™ Legal Writing: Deconstructing the Multi-State Performance Test Genre
Get PDFThe Multistate Performance Test (MPT) has been praised as the most redeeming part of the otherwise unredeemable bar exam because it most aligns with what new attorneys do in practice. It has also been praised, along with other performance tests, as a useful teaching tool throughout the law school curriculum. This article builds on prior scholarship about the MPT by analyzing the MPT as a tool for teaching and testing legal writing and professional communication skills.
The new insight that this article brings is that the testing aspect of the MPT tends to engulf the teaching aspect; understanding both of these attributes of the MPT and how they complement one another enhances the efficacy of the MPT as a teaching tool. To get the most out of the MPT as a bar taker or a law teacher, view the MPT as a legal writing assignment stuffed inside a teaching tool that is then stuffed inside a time-pressured test. To help convey this layering, you might think of the MPT as a legal writing Turducken, which is a layered dish with “a chicken stuffed inside a duck that’s then stuffed inside a turkey.”
From the outside, the MPT is a test—a timed test. That’s the turkey part of the Turducken. But somewhere inside that test is a decent legal writing assignment. That’s the chicken part of the Turducken. And the chicken is pretty great for teaching legal writing skills! Because these two layers currently clash more than they complement each other, we suggest connecting the two with thoughtful teaching. That’s the duck—a rich, juicy layer of pedagogy that can keep the testing turkey from overwhelming and compromising the benefits of the legal writing chicken. This article deconstructs the MPT by examining each layer, with the goal of teaching bar takers to develop best legal writing practices while also preparing for a time-pressured test of “minimal competency.”
The article also offers serving suggestions! The National Conference of Bar Examiners recently announced that it plans to remake the Uniform Bar Exam into a performance test, so the last part of the article details how to improve the MPT to better assess bar takers’ professional communication skills and practice readiness