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Hidden in Plain Sight: A More Compelling Case for Diversity
Get PDFFor four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on affirmative action, and a rightward shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions may hang in the balance.
In this Article, I contend that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center diversity’s most compelling quality: its ability to promote personal equality within the university. To fill this void, this Article advances the first comprehensive case for diversity rooted in each student’s interest in an equal opportunity to enjoy, regardless of race, the full benefits of university membership. This framing is appealing, in part, because it makes salient the present and personal equality harms that students of color suffer when severely under-represented in predominately white institutions. Race-conscious admissions, in turn, emerge as an essential component of institutional efforts to further normative commitments—ranging from racial integration to individual meritocracy—that should resonate with Justices across the ideological spectrum.
To support this new framing, I resurrect the Supreme Court’s pre- Brown desegregation cases. These decisions reinforce the constitutional infirmity of institutional conditions that compromise a student’s ability, because of her race, to access the full benefits of university membership. I then bridge the theory to social science that reveals how environmental cues—including racial demographics—can exact concrete and quantifiable burdens on students from negatively stereotyped groups. Although well-traveled in other domains, this research has only begun to inform legal scholarship
#MeToo, Statutory Rape Laws, and the Persistence of Gender Stereotypes
Get PDFThis Article illustrates how movements for increased equality between men and women can fail to meet their stated goals. Using the example of statutory rape laws, this Article explains how the legislative shift from gender-specific to gender-neutral terminology, brought on in part by feminists seeking an egalitarian society, has failed to achieve the goal of increasing equality between males and females and, in many ways, led to a return to the historical paradigm of girls as both powerless and property
Stemming the Expansion of the Void-for-Vagueness Doctrine Under Johnson
Get PDFThis Note addresses the constitutionality of the risk-of-force clause. Since many of the cases challenging the risk-of-force clause proceed on the argument that it is indistinguishable from the ACCA’s residual clause, the history of the residual clause is particularly relevant. Addressing the constitutionality of the risk-of-force clause will necessarily entail a discussion of whether it is distinguishable from the residual clause. Accordingly, brief histories of the ACCA and the residual clause will be given. This overview will provide a backdrop to the discussion of the Supreme Court’s struggle to define and apply the residual clause in numerous cases preceding the decision in Johnson. Understanding the Court’s trouble addressing the residual clause is a key component of the comparative analysis that will follow. After addressing Johnson as the culmination of the Court’s dealings with the residual clause, this Note will address how Johnson serves as a vehicle for challenges to other statues under the void-for-vagueness doctrine. The challenges to Johnson are presented to establish the certainty of a constitutional challenge coming before the Supreme Court concerning the risk-of-force clause. Last, this Note will address the constitutionality of the risk-of-force clause under a comparative analysis framework. The analysis will ultimately show that § 924(c)(3)(B) is distinguishable from previously invalidated statutory definitions and should be upheld as constitutional
The (Next) Big Short and the End of the Anthropocene
Get PDFIt is incredibly difficult to imagine an event the likes of which humans have never seen before. That, in and of itself, renders the challenge to prepare for such an event even more difficult because there is no frame of reference pushing us to act. How do you prepare to avoid something which has never occurred in the history of human occupation? That is the challenge of climate change.
I argue that the Subprime Mortgage Crisis and its aftermath parallel the Climate Crisis in critical ways that should inform our tactics. Of course, there are obvious critical differences as well. The Subprime Crisis was a predictive failure that involved the misallocation of risk and blindness to uncertainty. This Article examines the predictive failures of the Subprime Crisis by focusing on what makes probabilities more likely to be accurate and the circumstances in which some predictions blind us to the uncertainty of large-scale negative consequences. This Article employs the theory of the Black Swan and other critiques from Nassim Nicolas Taleb to explore the application of probability theory in the context of the Climate Crisis.
At the same time, data and probabilities are insufficient to motivate both individuals and political entities to act. Even an accurate probabilistic assessment of global climate change risk is inadequate; the Climate Crisis demands a narrative that resonates with individuals at a local and emotional level. Narrative theory explains the difficulty experienced in implementing legal solutions to mitigate the Climate Crisis.
This Article synthesizes the link between narrative power in creating human understanding and our propensity for making bad predictions through the human cognitive bias research of Daniel Kahneman and Amos Tversky. While policy-makers, scientists, and political representatives play important roles in trying to shape public opinion, recent empirical research supports the idea that lawyers—through litigation—are best equipped to immediately address the Climate Crisis
“100 Percent Renewable”: Company Pledges and State Energy Law
Get PDFCorporate demand for clean power emerged with new force and influence in postelection energy policy. As the Trump Administration decisively reemphasized fossil fuels, leading companies countered by pledging to power their operations with renewable energy. This Article assesses recent regulatory reforms at the state level responsive to these corporate pledges and considers the barriers and opportunities the reforms present for companies, for states, and for emissions reduction goals. It traces how corporate energy purchasing has evolved and how new policy innovations are extending that trajectory across a growing number of states. With a focus on reforms expanding access to renewable energy in states with traditional regulatory regimes, the Article situates the role of corporate demand for clean power in the broader context of energy transition policy. What risks or benefits might there be if policy shifts increase the role of corporate consumers in the U.S. electric power sector? Recognizing the trend’s potential for carbon emissions reduction, the Article considers how corporate demand for clean power is changing the role of commercial and industrial consumers on the modern grid and unpacks “100% renewable” claims. Turning to electricity’s legal and physical infrastructure, the Article weighs implications of increased nonutility influence and dispersed decision-making in energy policy
Adaptive Management for Ecosystem Services at the Wildland-Urban Interface
Get PDFManaging the wildland-urban interface (WUI) is a widely-recognized land use problem plagued by a fractured geography of land parcels, management jurisdictions, and governance mandates and objectives. People who work in this field have suggested a variety of approaches to managing this interface, from informal governance to contracting to insurance. To date, however, none of these scholars have fully embraced the dynamism, uncertainty, and complexity of the WUI — that is, its status as a complex adaptive system. In focusing almost exclusively on the management of this interface to control wildfire, this scholarship largely ignores the factor that rampant wildfire is itself the product of incursions into important ecosystem services on both sides of the interface. In many cases, people tend to expand out towards the wildland not just for economics (cheaper housing) but also because of a suite of ecosystem services that are readily accessible at the interface, including aesthetics, a cleaner environment, and recreational opportunities. As the wildfire problem amply demonstrates, these settlers then become upset when other aspects of ecosystem function invade their lives, but those invasions include not just wildfire disasters but also more pernicious problems such as diseases, allergens, and wildlife. As such, development at the WUI can create a multifaceted desire to control several undesirable aspects of ecosystem function while simultaneously promoting the ecosystem services that residents desire, complicating land use management on both sides of a line that is itself often moving or transforming into a transition or buffer zone. To focus solely on wildfire, in other words, may oversimplify an increasingly complex management problem with significant policy implications.While we cannot and will not attempt to resolve all of these policy issues in this article, we do propose that adaptive management may provide a mechanism for dealing with the complexity of managing changing ecosystem functions and services at the WUI, even when — and perhaps especially because — the private lands and wildlands are usually subject to different land use regimes. We begin with an overview of adaptive management, then discuss the hard but common case of fractured landscape management. We then explore the potential for adaptive management to help negotiate this fractured landscape in a changing world, starting with the classic issue of wildfire management but also suggesting possible expansions
The Patentability of Genetic Therapies: CAR-T and Medical Treatment Exclusions Around The World
Get PDFMore than eighty countries, including the members of the European Patent Convention, the United States, Canada, New Zealand, China, Japan, and India, currently exclude or limit the patentability of methods of medical treatment. CAR-T and other recent gene and cell therapies, which operate based on the extraction of genetic or cellular material from a patient, the alteration of such material, and the reintroduction of such material to the patient’s body, should, under most or all of these legal regimes, be considered medical treatments that are thus excluded from patentability, or as to which patent enforcement is limited. Accordingly, we urge national patent offices to update their examination procedures and practices to take these patentability limitations into account, and to publish guidance clearly explaining this approach to applicants
Fostering Adaptive Marine Aquaculture through Procedural Innovation in Marine Spatial Planning
Get PDFWorldwide, as wild-caught commercial fisheries plateau and human demands for protein increase, marine aquaculture is expanding. Much marine aquaculture is inherently adaptable to changing climatic and chemical conditions. Nevertheless, siting of marine aquaculture operations is subject to competing environmental, economic, and social demands upon and priorities for ocean space, while some forms of marine aquaculture can impose other externalities on marine systems, such as pollution from wastes (nutrients) and antibiotics, consumption of wild fish as food, and introduction of non-native or genetically modified species. As a result, governmental policy decisions to promote both marine aquaculture that can adapt to a changing ocean and adaptive governance for that aquaculture can become contested, requiring attention to their social legitimacy. This article explores how the law can promote the adaptability of marine aquaculture to climate change and ocean acidification — adaptive marine aquaculture — while still preserving key rule-of-law values, such as public participation and accountability. Perhaps most obviously, law can establish substantive requirements for marine aquaculture that minimize its impacts, promoting marine resilience overall. However, to foster truly adaptive marine aquaculture, including adaptive governance institutions, coastal nations should also procedurally reform their marine spatial planning efforts to legally connect the procedures for aquaculture permitting, marine spatial planning (MSP), and adaptive management. One goal of such connections, moreover, should be to mandate new forums for public participation and creative collaboration, promote experimentation with accountability that leads to increased knowledge, and foster the emergence of adaptive governance regarding the use of marine space
The False Promise of Health Data Ownership
Get PDFIn recent years there have been increasing calls by patient advocates, health law scholars and would-be data intermediaries to recognize personal property interests in individual health information (IHI). While the propertization of IHI appeals to notions of individual autonomy, privacy and distributive justice, the implementation of a workable property system for IHI presents significant challenges. This essay addresses the issues surrounding the propertization of IHI from a property law perspective. It first observes that IHI does not fit recognized judicial criteria for recognition as personal property, as IHI defies convenient definition, is difficult to possess exclusively, and lacks justifications for exclusive control. Second, it argues that if IHI property were structured along the lines of traditional common law property, as suggested by some propertization advocates, prohibitive costs could be imposed on socially valuable research and public health activity and IHI itself could become mired in unanticipated administrative complexities. Third, it discusses potential limitations and exceptions on the scope, duration and enforceability of IHI property, both borrowed from intellectual property law and created de novo for IHI.Yet even with these limitations, inherent risks arise when a new form of property is created. When owners are given broad rights of control, subject only to enumerated exceptions that seek to mitigate the worst effects of that control, Constitutional constraints on governmental takings make the subsequent refinement of those rights difficult if not impossible, especially when rights are distributed broadly across the entire population. Moreover, embedding a host of limitations and exceptions into a new property system simply to avoid the worst effects of propertization begs the question whether a property system is needed at all, particularly when existing contract, privacy and anti-discrimination rules already exist to protect individual privacy and autonomy in this area. It may be that one of the principal results of propertizing IHI is enriching would-be data intermediaries with little net benefit to individuals or public health. This essay concludes by recommending that the propertization of IHI be rejected in favor of sensible governmental regulation of IHI research coupled with existing liability rules to compensate individuals for violations of their privacy and abusive conduct by data handlers
Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction Over Non-Members
Get PDFFor the last 40 years the Supreme Court has been engaged in a measured attack on the sovereignty of Indian tribes when it comes to tribal court jurisdiction over people who are not members of the tribe asserting that jurisdiction. The Congress has already enacted legislation partially restoring some tribal courts’ criminal jurisdiction over non-members. This Essay proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such non-members. After examining the Supreme Court’s jurisprudence in this area and summarizing the Court’s main concerns with such tribal jurisdiction, this Essay explores various legislative options before settling on a preferred course of action. The proposal set forth in the last part of this Essay would reconfirm tribal court civil jurisdiction over non-members provided the tribal courts has established personal jurisdiction over the parties. However, tribal courts’ determinations on this subject would be appealable to federal courts. Furthermore, the Essay proposes to allow non-members being sued in tribal courts the option of removing their cases to federal courts under certain conditions