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This is No Ovary-Action: Femtech Apps Need Stronger Regulations to Protect Data and Advance Public Health Goals
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Superior Status: Relational Obstacles in Law to Racial Justice and LGBTQ Equality
Get PDFAnimus and discrimination are the two legal lenses through which in-equality is typically assessed and understood. Insufficient attention, however, is paid to the role of status in animating inequality, even in landmark cases thought to be equality-promoting. More than an animating force between intractable po-litical conflicts, status also informs the development of equality law in the United States. When courts, advocates, and policymakers affirm, ignore, miss, or con-cede to status hierarchies instead of dismantling them, those groups that perceive a decrease in their status relative to others will only use “equality-promoting” doctrine to rebalance status hierarchy in their favor. Public school integration and same-sex marriage threatened status hierarchies primarily favoring white people in the former, and straight white males in the latter. Thus, both movements pre-sent opportunities to consider how education and marriage work to secure status, examine how the two “successful” equality movements actually preserved and created new opportunities for superordinate groups to maintain superior status, and theorize how law might better account for retrenchment demanded by the status-privileged
The Fantasy of the Unchaste Mentality
Get PDFFor the past forty years, North Carolina’s rape-shield legislation has served as a laboratory of experimentation. Like the rape-shield legislation of every state, it generally prevents the admission of complaining witnesses’ past sexual history in sexual assault prosecutions. However, North Carolina’s rape-shield rule contains a unique exception not found elsewhere in the country. The exception, which we label the “fantasy exception,” permits the admission of a complaining witness’s past sexual behavior when it is offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the charged assault.
This Article is the first to rigorously scrutinize the fantasy exception. We conclude that the North Carolina experiment has failed. The fantasy exception’s potential policy justifications range from misogynistic at worst to unsound at best. In its application, the fantasy exception fails to confer any positive protections to criminal defendants yet carries the potential to confuse and intimidate sexual assault victims. In such a sensitive area of the law that especially needs clear and logical rules, the fantasy exception only harms; it never helps. In short, other jurisdictions should continue to avoid the fantasy exception, and North Carolina should remove it from its rape-shield legislation
The End of School Policing
Get PDFPolice officers have become permanent fixtures in public schools. The sharp increase in the number of school police officers over the last twenty years has generated a substantial body of critical legal scholarship. Critics question whether police make students safer. They argue that any safety benefits must be weighed against the significant role the police play in perpetuating a school-to-prison pipeline that funnels Black and Brown students and students with disabilities out of schools and into courts, jails, and prisons. In suggesting remedies for this problem, commentators have proposed several regulatory fixes. These include changes to the standards for evaluating students’ claims of constitutional rights violations, specialized police trainings, and voluntary agreements between law enforcement agencies and school districts that circumscribe the role of school police. Thus far, however, legal scholars have focused primarily on the “how” of school policing, eschewing the logically prior normative question of whether there should be police in schools at all
War Powers Abrogation
Get PDFThe United States’ peacetime security is based entirely on its all-volunteer armed forces. These volunteers, split equally between full- and part-time servicemembers, risk not only their health and safety, but also their economic stability when they are called away from home for training or active duty. Servicemembers’ duties also interfere with the demands of employers, creditors, and government agencies—which can result in job losses, financial difficulties, and other costs. As a result, the federal government has long used its constitutional war powers to enact legislation protecting servicemembers from many of these hardships. These statutes provide employment leave and antidiscrimination protection, tax relief, and special procedural rights that lessen the burden of military service to ensure that the United States has a sufficient number of well-trained soldiers.
Despite these statutes’ importance to national security, their applicability to state entities is in doubt. Using the Supreme Court’s fluctuating state sovereign immunity jurisprudence, many state employers have invoked sovereign immunity to bar servicemembers’ private claims for monetary relief. More often than not, courts have sided with the states and dismissed servicemembers’ federal claims for want of jurisdiction. However, these decisions are based on erroneous interpretations of the Court’s doctrine of sovereign immunity. Under current law, the federal government’s ability to subject states to individual suits is analyzed from a historical perspective. The inquiry asks whether the states, in ratifying the Constitution, believed that they retained immunity in a given area. Based on misinterpretations of Court doctrine and a refusal to apply the required historical analysis, many courts have held that states are immune from claims filed under federal war powers legislation.
This Article provides the first comprehensive historical analysis of the constitutional balance of war powers between the federal and state governments. This analysis unequivocally shows that the Constitution was intended to provide the federal government with virtually all war powers. Moreover, the Constitution requires that the very limited war powers left to the states must be entirely under the control of the federal government. As a result of this history, the federal government has constitutional authority to subject states to suit through “war powers abrogation.
Unlawfully-Issued Sovereign Debt
Get PDFIn 2016, its economy in shambles and looking to defer payment on its debts, the Venezuelan government of Nicolás Maduro proposed a multi-billion dollar debt swap to holders of bonds issued by the government’s crown jewel, state-owned oil company Petroleós de Venezuela S.A. (PDVSA). A new government now challenges that bond issuance, arguing that it was unlawful under Venezuelan law. Bondholders counter that this does not matter, that PDVSA freed itself of any borrowing limits by agreeing to a choice-oflaw clause designating New York law.
The dispute over the PDVSA 2020 bonds implicates a common problem. Sovereign nations borrow under constraints imposed by their own laws. Loans that violate these constraints may be deemed invalid. Does an international bond—i.e., one expressly made subject to the law of a different jurisdiction—protect investors against that risk? The answer depends on the text of the loan’s choice-of-law clause, as interpreted against the backdrop of the forum’s rules for resolving conflict of laws problems.
We show that the choice-of-law clauses in many international sovereign bonds— especially when issued under New York law—use language that may expose investors to greater risk. We document the frequent use of “carve-outs” that could be interpreted to require the application of the sovereign’s local law to a wide range of issues. If interpreted in this way, these clauses materially reduce the protection ostensibly offered by an international bond. We explain why we think a narrower interpretation is more appropriate. We close by exploring implications of our findings, including for the dispute over the PDVSA 2020 bonds