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#IncludeTheirStories: Rethinking, Reimagining, and Reshaping Legal Education
Get PDFThe entire world was shaken by the events of 2020—a year that the historians will pen with infamy. Along with a global health pandemic that tested both human frailties and social infrastructures, the world witnessed the devastation of George Floyd, an African American man, dying under the knee of Derek Chauvin, a White male police officer. The nation erupted. As 2020 ended, many organizations and institutions clamored both to process ethnic divides and injustices, and to gain tools and skills to create meaningful change and lasting impact. Legal education was one such institution. During the summer and fall of 2020, much was written and discussed about the ways in which law faculty might pedagogically teach “race,” racism, and related inequities, in the classroom.
This symposium was a response to those laudable efforts. It gathered scholars and practitioners who have been deeply engaged in this work to examine historical roots of the legal profession and discuss best practices for exploring ethnic, gender, and related inequities alongside our law students. It is well established that the legal profession and legal education neither reflect the community they serve nor swiftly respond to the social shifts within the broader society. As 2020 grossly revealed, ethnic partiality and division are aches we have yet to really confront and bear. For example, the casebook method format of legal education continues to model Christopher Langdell’s Gilded Age curriculum, a proscriptive framework steeped in objectivity and intentionally withdrawn from both history and human experiences.
The selected cases, even if they describe the ethnicity and gender of the plaintiff or defendant, for example, rarely invite critical thinking as to how that party’s identity impacted their interaction with the legal system. Further still, as faculty, we recognized the need to be better equipped to thoughtfully engage with these questions, whether or not our students raised them. It is time that both critical thought and brave engagement become the norm in legal education
“Long COVID,” Bodily Systems as ADAAA Major Life Activities, and the Social Model of Disability
Get PDFLong COVID claims for disability-related employment discrimination have been met by physical reductionism during determinations of disability. Difficult to diagnose due to an absence of agreed-upon physiologically observed biomarkers, and liable to elude ADA coverage and/or eligibility for reasonable workplace accommodations, long COVID illustrates a misunderstanding of the relationship between disability, bodily function, and disability anti-discrimination law. Although the ADAAA was intended to extend the range of people considered to be disabled for purposes of disability anti-discrimination law, including bodily system function as a major life activity in the amended statute has contributed to problematic physical reductionism in disability determinations as demonstrated in recent federal court decisions. To remedy this discordance, we suggested how social understandings of the body and disability, congruent with the ADAAA, can counter misleading reductionism about ambiguously diagnosed conditions as disabilities, including long COVID
Smart Meters as a Catalyst for Privacy Law
Get PDFSmart utility meters raise several puzzling legal questions—and answering them can help point the way toward the future of Fourth Amendment and civil privacy law. This forum essay addresses two such issues: use restrictions on collected data, and voluntary data disclosure.
First, more than any other current technology, smart meters compel the development of use restrictions on collected data. The benefits of smart meters are potentially enormous, such that categorically prohibiting public utilities from collecting smart meter data is likely beyond the pale. Yet allowing law enforcement agents to obtain detailed or intimate data about the home without a warrant seems equally unacceptable. Smart meters are the clearest example yet of the need for robust restrictions on how the government can use data it has collected. Government entities are already collecting personal information about citizens for a variety of legitimate, non-law enforcement purposes. Limiting access to such data will often be the best practical means to ensure citizen privacy in the era of big data.
Second, smart meter privacy is threatened by legal regimes that emphasize users’ voluntary disclosure of their energy use data. While many customers have little choice but to use smart meters, numerous others do have a choice, and detailed energy surveillance likely entails customers voluntarily choosing to link their smart meters with smart home devices and appliances. Under some doctrinal approaches, such voluntarily disclosed data would be wholly unprotected by the Fourth Amendment. Courts and scholars would do well to move beyond existing paradigms of voluntary choice and inescapable surveillance, lest the most sensitive forms of smart meter data remain unprotected.
This essay responds to and is inspired by Matthew Kugler and Meredith Hurley’s excellent article in the Florida Law Review discussing the privacy ramifications of smart meters
The Disappearing Freedom of the Press
Get PDFAt this moment of unprecedented decline of local news and amplified attacks on the American press, attention is turning to the protection the Constitution might provide to journalism and the journalistic function. New signals that at least some Justices of the U.S. Supreme Court might be willing to rethink the core press-protecting precedent in New York Times v. Sullivan has intensified these conversations. But this scholarly dialogue appears to be taking place against a mistaken foundational assumption: that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Despite the First Amendment text specifically referencing it—and despite a Roberts Court trend toward other First Amendment expansiveness—freedom of the press is disappearing from the United States Supreme Court’s lexicon. Although the process has gone largely unnoticed, the concept of a free press has almost entirely vanished at the highest court in the land. Our individually coded dataset, capturing every paragraph mentioning the press written by all 114 Justices in 235-year history of the Court, shows that in the last half-century the Court’s references to the concept of freedom of the press have dramatically declined. They are now lower than at any other moment since the incorporation of the First Amendment. The jurisprudential desertion of this concept is evident in every quantitative and qualitative measure we analyzed. Press freedom was once a commonly adopted frame, with the Court readily acknowledging it, both on its own and as a co-existing First Amendment right alongside the freedom of speech. Justices of the Court once routinely recognized it—not only in cases focused on the media, but also in cases not involving the press. The data reveal that these practices are a thing of the past. Gone are not only the ringing, positive endorsements of freedom of the press—situating it as valuable, important, or central to democracy—but also the bare acknowledgement of it at all. A close investigation of the patterns of individual Justices reveals not only that there are no true advocates of the right on the current Court, but also that most of the current Justices have rarely, if ever, mentioned it in any context. The Article addresses both the possible causes and the troubling consequences of this decline. It explores strong evidence contradicting many of the initially appealing explanations for the trend, examining the ways in which the phenomenon is unlikely to be solely a function of the Court’s smaller press-related docket or reliance on settled law in the area. It also examines data on the interrelationships between ideology and acknowledgement of freedom of the press. The Article highlights the ways in which the disappearance of the press-freedom principle at the Court may impede the newly revived effort to invoke the constitution as a tool for preserving the flow of information on matters of public concern
Telephone Pole Cameras Under Fourth Amendment Law
Get PDFIn a series of recent cases, police officers have mounted sophisticated surveillance cameras on telephone poles and pointed them at the homes of people suspected of a crime. These cameras often operate for months or even years without judicial oversight, collecting vast quantities of video footage on suspects and their activities near the home. Pole camera surveillance raises important Fourth Amendment questions that have divided courts and puzzled scholars.
These questions are complicated because Fourth Amendment law is complicated. This is especially the case today as Fourth Amendment law is in a transitional phase, caught between older and newer paradigms for determining the scope of the Amendment’s power. This Symposium Essay succinctly lays out the standards that govern modern Fourth Amendment search questions. It applies those standards to the pole camera issue—perhaps the most urgent and consequential issue in current Fourth Amendment surveillance law. The Essay surveys the substantial body of caselaw addressing this question. It offers its own detailed analysis and grapples with variations in fact patterns that have confounded prior attempts to address the issue. Finally, it uses this analysis to draw vital lessons for Fourth Amendment law more broadly
A New Framework for Digital Taxation
Get PDFThe international tax regime has wide implications for business, trade, and the international political economy. Under current law, multinational enterprises do not pay their fair share of taxes to market countries where profits are generated because market countries are only allowed to tax companies with a physical presence there. Digital companies, like Google and Amazon, can operate entirely online, thereby avoiding market country taxes. Multinationals can also exploit existing tax rules by shifting their profits to low-tax jurisdictions, thereby avoiding taxes in the residence country where their headquarters are located. Recently, a global tax deal was reached to tackle these issues. Proposed by the OECD/G20 Inclusive Framework and endorsed by nearly 140 countries, this global tax deal sets forth two Pillars that reform the outdated international tax regimes. Pillar One addresses digital taxation while Pillar Two addresses a global minimum tax. However, it is doubtful that the global tax deal will be successfully implemented, especially with respect to Pillar One. As the details of Pillar One have become increasingly complex and degraded by political compromises and carve-outs, it risks being a framework without substance. Also, countries are unlikely to repeal an established tax instrument, Digital Services Taxes (“DSTs”), which is an adamant requirement of the United States in adopting Pillar One. This Article offers the first comprehensive critique of the global tax deal and assesses its prospects and problems. It evaluates the U.S. responses to the proposed global deal and to DSTs. It presents the challenges, such as treaty overrides, that will occur if the United States implements Pillar One by executive agreement so as to bypass the treaty ratification. This Article suggests separating the two Pillars to preserve the global minimum tax. Regarding DSTs, the Article provides several empirical studies that demonstrate the harm retaliatory tariffs cause. Finally, it endorses the U.N. digital taxation proposal and proposes a new Data Excise Tax as a normative alternative
The Court’s Gerrymandering Conundrum: How Hyper-partisanship in Politics Alters the Rucho Decision
Get PDFThe Supreme Court’s recent decision in Rucho v. Common Cause was the latest in a line of opinions regarding reviewability of gerrymandering claims related to the constitutionally required decennial state redistricting process. In Rucho, the Court altered the course of future electoral processes and held that partisan gerrymandering claims were nonjusticiable. In doing so, the Court failed to consider obvious pitfalls in limiting the type of review available for these gerrymandering claims. In particular, the Court failed to understand the gravity of the impact such a decision would have on minority voting power and discarded one of the few structural safeguards our democratic process has in place to ensure fair elections. Chained to the idea that review of the redistricting cycle should remain with the state, the Court overestimated the power of state courts and the democratic process to mitigate partisan bias in the redistricting process. If left unchecked, these state legislatures, fueled by the hyper-partisan politics of our day, could erode all faith in the electoral process and dilute votes to the point of giving them little value to the electoral process, depending on the party of the candidate
When Cannabis Businesses Fail: Assignment for the Benefit of Creditors as an Alternative to Bankruptcy
Get PDFCannabis businesses should keep the ABC in mind if they begin to struggle. As the cannabis industry becomes a greater part of our economy, more practitioners need to be aware of the solutions to risks that come with running a business associated with cannabis. While the federal government appears to have taken a mostly hands-off approach with states with their own regulatory schemes, that does not address the concerns of a failing cannabis business. The ABC addresses those concerns and can serve as a valid substitute for filing for bankruptcy
Certification (and) Marks – Understanding Usage and Practices Among Standards Organizations
Get PDFIn addition to creating technical standards that describe how different products or services interoperate, many standards development organizations (SDOs) also perform testing services that are designed to ensure that products that ostensibly comply with a standard actually work together. SDOs frequently call this process “certification,” and authorize implementers that pass the testing process to use a logo or similar mark. Certification marks are a type of trademark that would seem to be tailor-made for this process. Our empirical analysis shows that SDOs use certification marks only relatively rarely, however. This dissonance is striking, providing insight into both the remarkably sophisticated practices of many SDOs in connection with compliance and interoperability testing and into potential weaknesses of the certification mark legal regime. The empirical data presented in the paper is intended to serve as a foundational platform for further work analysing the law and policy of certification marks and the practices of SDOs in connection with interoperability testing and certification
Market Myopia’s Climate Bubble
Get PDFA growing number of financial institutions, ranging from BlackRock to the Bank of England, have warned that markets may not be accurately incorporating climate change-related risks into asset prices. This Article seeks to explain how this mispricing occurs, drawing from scholarship on corporate governance and the mechanisms of market (in)efficiency. Market actors: (1) Lack the fine-grained asset-level data they need in order to assess risk exposure; (2) Continue to rely on outdated means of assessing risk; (3) Have misaligned incentives resulting in climate-specific agency costs; (4) Have myopic biases exacerbated by climate change misinformation; and (5) Are impeded by captured regulators distorting the market. Further, trends in institutional share ownership reinforce apathy toward assessment of firm-specific fundamentals, especially over longterm horizons.
This underpricing of corporate climate risk contributes to the negative effects of climate change itself, as the mispricing of risk in the present leads to a misallocation of investment capital, hindering adaptation and subsidizing future combustion of fossil fuels. These risks could accumulate to the macroeconomic scale, generating a systemic risk to the financial system. While a broad array of government interventions are necessary to mitigate climate-related financial risks, this Article focuses on proposals for corporate governance and securities regulation—and their limits. The Securities and Exchange Commission is currently drafting a rule on mandatory climate risk disclosure. This Article argues that the SEC should seek out climate expertise through interagency collaboration and staff hiring, work with auditors and the Public Company Accounting Oversight Board, and provide guidance on climate risk analytics. This Article argues that climate risk disclosure is necessary, though alone not sufficient, to address the widespread disregard of corporate climate exposure