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Don\u27t Say Gay: The Government\u27s Silence and the Equal Protection Clause
Get PDFThis paper will argue that the LGBT movement has played, and will continue to play, a significant role in developing doctrines that subject government speech to the requirements of the Equal Protection Clause. In particular, the paper will examine how this doctrine is being developed in litigation around anti-LGBT curriculum laws—statutes that prohibit or restrict the discussion of LGBT people and topics in public schools. It argues that this litigation demonstrates how the Equal Protection Clause can be violated by the government’s silence, as well as the government’s speech. In addition, it explains why the Don’t Say Gay Laws recently passed in Florida and Alabama are unconstitutional, for the same reasons as the anti-LGBT curriculum laws passed in earlier eras
Law’s Contributions to the Mindfulness Revolution
Get PDFThese are phenomenally challenging times. Mindfulness is a tool that can help lawyers support themselves, each other, their clients, and their collaborators in the hard work needed to build community and take action. For these and other reasons, mindfulness has made major inroads into law and legal institutions. Law firms, law schools, and courthouses offer training in mindfulness meditation to support the cognitive clarity and emotional self-regulation necessary for the demanding work of analyzing problems, resolving conflicts, overcoming bias, and doing justice. A growing literature, from empirical social science to legal scholarship, catalogs these and other benefits of mindfulness for lawyers, judges, and law students.
The encounter between law and mindfulness has been framed, to date, as one that benefits legal actors. What has been overlooked is the way that law can benefit mindfulness. This Article argues that the developing relationship between law and mindfulness has the potential to address significant problems facing mindfulness in legal and other institutional settings.
Two major dilemmas threaten to undermine the institutional impact of mindfulness. The first dilemma (termed here the minimizing dilemma) presents this challenge: Is mindfulness so individualistic, passive, and nonjudgmental as to be irrelevant (or worse) to the tremendous injustice and other problems plaguing our society? The second dilemma (termed here the magnifying dilemma or the mandatory mindfulness problem) cuts the other way: Is the introduction of mindfulness into mainstream U.S. institutions, such as law schools and law firms, so powerful and intrusive as to be forcing people to meditate? This Article uses insights from law practice, legal pedagogy, and contract default-rule theory and research to respond to these dilemmas. Such contributions—from law to mindfulness—demonstrate that the synergies between these two seemingly disparate fields redound to the benefit of both. Recognizing the mutual benefits of this relationship helps us anticipate how law and mindfulness can both expect to grow stronger through the increasing incorporation of mindfulness programs into legal institutions
The White Supremacist Constitution
Get PDFThe United States Constitution is a document that, during every era, has helped further white supremacy. White supremacy constitutes a “political, economic and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings.”1 Rather than understand the Constitution as a force for progressive structural change, we should understand it as a barrier to change.
From its inception, the Constitution enshrined slavery and the degradation of Black people by considering them to be property rather than equal members of the community. The Civil War Amendments did not truly abolish slavery and only prohibited a limited band of state action. Radical Reconstruction was short-lived as white supremacy quickly eviscerated any political gains that Black voters had achieved. The Supreme Court has interpreted the Civil War Amendments consistently with their white supremacist roots. Rather than serve as an effective instrument to help eradicate the badges, incidents, and vestiges of slavery, the Constitution has become a tool both to ban voluntary raceaffirmative measures at the federal, state, and local government level, and also to preclude Congress from enacting strong abolitionist measures. The Court has enshrined the views of Andrew Johnson, a fierce proponent of white supremacy, into its basic structure.
This Article challenges us to imagine how resistance lawyers might seek to use the Constitution to help eliminate white supremacy while also generally recognizing the limitations of the use of the judicial system, including the specific limitations of the U.S. Constitution, for that purpose. Only then might we achieve a truly radical reconstruction
#IncludeTheirStories: Rethinking, Reimagining, and Reshaping Legal Education
Get PDFThis symposium gathered scholars and practitioners who have been deeply engaged in the 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.3 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
What Law Schools Should Leave Behind
Get PDFLegal education is at a crossroads, again. Perhaps the more apt transportation metaphor is that legal education is stuck in a roundabout. Crossroads require introspection and decision-making. You can’t move past a crossroad without making an affirmative choice. Roundabouts provide the illusion of movement while keeping you in one place. But don’t be fooled; staying in the roundabout is still a choice.
2020 disrupted this lull. Amid a polarizing political climate, state-sanctioned violence, and the coronavirus pandemic, students said enough.They were right: Enough. Staying in the roundabout right now, choosing the status quo, might be expedient; but it’s also the wrong answer. After thirty-some-odd years of law review articles and conferences filled with “tipping-points,” “crossroads,” and “crises,” it’s time to make significant changes.
This essay argues that law schools must reimagine the pivotal 1L year. In contrast to the status quo, a reimagined 1L year would meet our students where they are now, not where they were (and who they were) one hundred years ago. To start this project, to move toward action-oriented change that actually builds an inclusive and equitable law school for all constituents, the first question isn’t what are we willing to add?—ABA requirements, trainings, book groups, committees, courses—but, what are we willing to give up?
This Essay argues that to prepare future lawyers to build a more equitable, inclusive, and just profession, law schools must first relinquish three things: the faculty caste system and the distinction between doctrine and skills that it reflects; high-stakes, summative exams; and the curve
Pivoting Under Pressure: Cultural Proficiency, Race, and Reforms
Get PDFThere is a new conversation in legal education about a pernicious problem. As the COVID-19 pandemic raged in spring 2020, legal educators around the country had to pivot to remote teaching. At the same time, racial protests erupted in response to the brutal and successive killings of Ahmaud Arbery, Breonna Taylor, and George Floyd. As law schools grappled with the pressure of the latest racial reckoning, Black law faculty and students demanded cultural change within legal education in response to their devastation, desperation, battle fatigue, and frustration. Unwilling to accept the performative diversity efforts of the past, there was a clear demand for immediate, comprehensive, and reconceptualized action: diversify legal education, increase scholarships for diverse students, hire more faculty of color, divest investments in private prisons, create administrative positions focused on inclusion initiatives, and reform the traditional curriculum to integrate the operation of race in the law. Unfortunately, many law schools were ill-equipped to meet these demands, especially in a remote learning environment
A Statutory Anti-Anti-Suit Injunction for U.S. Patent Cases?
Get PDFLitigation relating to fair, reasonable and non-discriminatory (FRAND) licensing of patents essential to industry standards has recently seen a sharp increase in cross-jurisdictional competition fueled by the trend of courts in some jurisdictions (particularly China) to seek to establish FRAND royalty rates applicable around the world, and the increased use of anti-suit injunctions (ASIs) to prevent parties from pursuing parallel litigation in other jurisdictions. The proposed “Defending American Courts Act” (DACA), introduced to the U.S. Senate Judiciary Committee in March 2022, seeks to deter the use of foreign-issued ASIs in U.S. patent litigation. The DACA would effectively create a statutory national “anti-anti-suit injunction” (AASI) that would penalize parties seeking to enforce foreign ASIs by eliminating their ability to challenge asserted patents at the Patent Trial and Appeals Board (PTAB) and establishing presumptions of willfulness, for purposes of enhancing damages under Section 284 of the Patent Act, and exceptional status, for purposes of awarding attorney fees under Section 285. While crossjurisdictional competition in FRAND cases has created numerous litigation inefficiencies and diplomatic issues, there may be other means to address the problem of foreign ASIs. As a result, further study of these questions, as suggested by DACA itself, may be warranted before legislation is enacted
Navigating the Non-Fungible Token
Get PDF69 million, and $52.7 million. These are the amounts associated with the three most sought after Non-Fungible Tokens (NFTs) sold in 2021. Although NFTs were first created in 2014, 2021 saw a massive rise in their global popularity. In fact, Google reported that in 2021, “How to buy an NFT?” was one of its most searched questions.
NFTs can alternatively represent a collectible, a financial instrument, or a permanent record associated with a person, physical or digital object, or data—each presenting an entirely distinct set of legal issues. The lack of governmental expertise in emerging technologies accompanied by the shortage of regulatory guidance has created a frustrating environment for innovators. Despite being one of the fastestgrowing industries in the world, there is a remarkable deficit in legal scholarship regarding these devices. NFTs, with their attendant blockchain and smart contract technologies, can create new paradigms around ownership and identification and inspire entirely new business models. In addition to clarifying what NFTs are, this Article seeks to fill the gap in the literature by analyzing how the specific use of an NFT implicates different areas of the law. Examining the way NFTs function in sectors ranging from fine arts to finance, this Article suggests how tokenization law and policy must advance to leverage the incredible opportunities that NFTs present
A Sand County Tax Shelter: Syndicated Conservation Easements and Their Toll on the American Taxpayer
Get PDFThe conservation easement is a powerful tool for conserving private land in the United States and beyond. Among the many incentives for encouraging conservation easement donations are tax deductions, which largely depend on the conservation value of the donated land. But groups of wealthy taxpayers, accountants, attorneys, and appraisers are manipulating the conservation easement tax framework and receiving large tax deductions for conservation easements that are practically worthless in a conservation sense—transactions known as \u27syndicated conservation easements.\u27 Syndicated conservation easements have generated substantial controversy, in part because they cost American taxpayers billions of tax dollars annually. While the Internal Revenue Service, the United States Department of Justice, members of Congress, and conservation groups are attempting to crack down on syndicated conservation easements, their efforts to curb the practice remain ineffective. This Note first examines the conservation easement tax framework and considers the ways in which it enables syndicated conservation easements. Next, this Note describes the measures taken against syndicated conservation easements and analyzes how such measures have fallen short. Finally, this Note contemplates more effective ways to uncover syndicated conservation easements and curb such transactions entirely. Specifically, the Internal Revenue Service must streamline its auditing efforts to focus on appraisals, while the United States Department of Justice must impose harsher penalties on those involved in syndicated conservation easements. Similarly, Congress must create a more effective system for appraisal oversight and should enact legislation that alters the existing tax framework in a way that disincentivizes wealthy taxpayers from engaging in syndicated conservation easements altogether. Lastly, individual conservation groups must work together to create a more uniform set of standards and practices for conservation easement donation, while state legislators should strive to create uniformity in state conservation easement tax law
Demystifying Mindreading for the Law
Get PDFTo lawyers, mindreading conjures up flamboyant images of crystal balls or charlatans. However, it is a deeply serious endeavor for the law. The primary role of fact-finders in civil, criminal, and administrative trials in the United States is to serve as highly-regulated mind readers—to listen to the testimony and decide whether the witnesses are credible and telling the truth. Because it can be so easily biased, we must directly acknowledge how jurors and judges (in addition to voters and employers) automatically and imperfectly read minds. We must remove the “mystique of mindreading,” and see how ordinary assessments of mental states drive legal decision-making. If we want to have any hope of mitigating the psychological biases at play, we cannot continue to pretend that they do not occur