Thursday, June 2, 2022

SCHOLARSHIP ROUND-UP!!! 2021 publications

Thanks to everyone who participated in the call for recent scholarship. Members of our community have produced a number of truly interesting articles. They are divided into broad categories below for easy perusal. Congrats to all the authors!

 

Asylum & Immigration

Jon Bauer, Obscured by 'Willful Blindness'': States' Preventive Obligations and the Meaning of Acquiescence Under the Convention Against Torture, 52.2 Columbia Human Rights Law Review 738 (2021). Relief under the U.N. Convention Against Torture (CAT) provides the last hope for safety for many asylum seekers. But for those who face torture at the hands of non-State actors, CAT relief has proven extraordinarily hard to win. This article argues that courts have misconceived the CAT's requirement that torture occur with the "acquiescence" of a public official, and argues for a standard rooted in the international law duty of States to exercise due diligence to prevent torture.

Jon Bauer, Overview and Historical Background of U.S. Asylum Law, Book chapter in Asylum Medicine: A Clinician's Guide (Springer, 2022). This is the first chapter in a book aimed at guiding health professionals who conduct medical or mental health evaluations in asylum cases. This chapter discusses the evolution of the international treaties and U.S. legal provisions that protect persons against removal to countries where they would be in danger of persecution. It describes the legal standards and processes governing asylum and related forms of relief, and the role that health professionals can play, both in individual cases an in advocating for systemic reforms. 

Christine Cimini, with Doug Smith, An Innovative Approach to Movement Lawyering: An Immigrant Rights Case Study, 34 Georgetown Immigration Law Journal 431 (Winter 2021). This Article leverages an in-depth case study – of the immigration enforcement program known as Secure Communities - to explore how lawyers work as part of a community to challenge power and effectuate change. The Article concludes that efforts were optimized when lawyers, organizers, and activists together built a nimble, adaptive, and modular strategy to enhance concerted power from the ground up, synergistically exploiting various strategies, that produced strengthened relationships and lasting investments in organized resistance.

Julie Dahlstrom, Trafficking and the Shallow State, 12 UC Irvine Law Review 61 (2021). More than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also have climbed. This Article posits that one reason for the challenges of the T visa program relates to the shallow state, as low-level administrative actors adjudicating humanitarian immigration cases have subtly worked to undermine protections for immigrant victims of trafficking. It maps out how administrative actors have worked to increase rejections, delays, and denials, and lays out administrative and judicial remedies.

Richard Frankel, Deporting Chevron: Why the Attorney General’s Immigration Decisions Should not Receive Chevron Deference, 54 U.C. Davis L. Rev. 547 (2020). The paper argues that Attorney General immigration decisions should not receive Chevron deference because they do not reflect agency expertise, democratic accountability, or true exercise of delegated authority.

Marcy Karin, with Valeria Gomez, Menstrual Justice in Immigration Detention, 41 COLUM. J. GENDER & L. 143 (2021). This essay categorizes, amplifies, and contextualizes menstrual injustices in immigration detention.

Hiroko Kusada, with Heather Pendergast, Introduction To Removal Proceedings, American Immigration Lawyers Association (2021 ed.). Provides a comprehensive overview of removal proceedings.

Sarah Paoletti, Relentless Pursuits: Reflections of an Immigration and Human Rights Clinician on the Past Four Years, 27 Wm. & Mary J. Women & L. 121 (2020). An essay setting out the critical reflections from the perspective of one immigration / human rights clinician on clinical teaching through an era of indeterminacy on steroids where cruelty was the point, and where the racism, xenophobia and misogyny behind the policies and laws that our clients were being subjected to and our students were confronting was both systemic and explicit. (Published as part of symposium issue: Justice Along Borders: Social Justice and Its Intersection With Law, Immigration, and Human Rights. William & Mary Journal of Race, Gender, and Social Justice. Symposium. February 26-27, 2021.)

Sarah Sherman-Stokes, Public Health and the Power to Exclude: Immigration Expulsions at the Border, 36 Geo. Immigr. L.J. 263, 263–91 (2022). Beginning in March of 2020, against the advice of public health experts, the U.S. Government closed the southern U.S.-Mexico border, disproportionately impacting would-be asylum seekers from Central America, who are now immediately expelled from the United States should they reach the border under a process known as “Title 42.” Not only do these expulsions lack a legitimate public health rationale, but they also violate our domestic and international legal obligations to protect immigrants at risk of persecution or torture.

 

Business Law

Ted De Barbieri, Excluding Disadvantaged Businesses, 28 GEO. MASON L. REV. 901 (2021). Laws that subsidize small businesses frequently fail to reach owners most in need of governmental support. Small business owners, especially those who are historically marginalized and discriminated against, are particularly vulnerable in times of market crisis. 

Jennifer Fan, The Landscape of Startup Corporate Governance in the Founder-Friendly Era, 18 NYU J. Bus. L. __ (2022). This is the first empirical study of startup corporate governance post-Great Recession and during the pandemic. Using survey and interview methodologies, the Article shows: 1) a founder-centric model of corporate governance has emerged; 2) independent directors are typically not tiebreakers or swing votes as current scholarship assumes; 3) although fiduciary duties and contractual mechanisms still loom large in corporate governance, most of the work is done informally with best practices and the growth-at-all-costs model framing much of what is done regarding corporate governance; and 4) DEI efforts are still in their nascent stages.

Naveen Thomas, Golden Shares and Social Enterprise, 12 HARV. BUS. L. REV. __ (forthcoming 2022). Social enterprises—for-profit companies with public-interest missions—are now ubiquitous, yet few have emerged from the realm of small business. The main obstacle to their growth is a gap in trust between managers and investors, with each side lacking any legal assurance that the other will pursue both profits and purpose. Too often, these misgivings limit businesses’ access to capital. Beyond new legal forms created to accommodate this sector, some social entrepreneurs have adopted inventive organizational structures as part of a growing global movement called steward ownership. Among the first structures in the United States is the golden share model, in which a Delaware public benefit corporation with dual-class stock grants all voting rights to managers, all economic rights to investors, and critical veto rights to an independent foundation. This Article is the first to address this movement and its potential to advance social enterprise. The golden share model begins to close this sector’s trust gap from one side, by assuring managers that investors cannot divert a company from its mission. But from the other side, the gap may widen even further, as investors worry that managers will ignore that mission and abuse their unchecked authority. To bridge this gap, novel applications of established industry practices and familiar legal concepts, like impact metrics and voting trusts, could vastly improve the model. With these practical proposals, social entrepreneurs could retain independence in pursuing their missions, while attracting the capital needed to achieve them at scale.

 

Civil Rights

Cori Alonso-Yoder, Making a Name for Themselves, 74 Rutgers L. Rev. No. 3 (forthcoming 2022). Making a Name for Themselves examines the use of name change law as a form of liberation and self-determination by historically oppressed groups in the United States. By comparing the common law of name changes to state-based name change legislation, I argue that the flexible common law doctrine of name change has been undermined by legislation that gives broad authority to judges to deny name change petitions based on their own biases against underrepresented groups. 

Allison M. Freedman, Rethinking the PLRA: The Resiliency of Injunctive Practice and Why It’s Not Enough, 32 Stan. L. & Pol'y Rev. 317 (2021). Despite predictions to the contrary, twenty-five years after Congress passed the Prison Litigation Reform Act, some injunctive practice remains possible where (1) lawyers carefully craft consent decrees to sidestep the PLRA’s hurdles to injunctive relief, and (2) judges take persistent and stern measures to help move defendants toward compliance with decrees. Yet despite advocates’ and judges’ best efforts to circumvent the Act’s limitations, the PLRA still hampers necessary prison reform and should therefore be reassessed.

Rachael Kohl, Reconsidering "Able and Available:" Using the ADA to Combat Disability Discrimination Due to Outdated State Unemployment Laws, Cornell Journal of Law and Public Policy (forthcoming Winter 2022). This Article is the first to examine how neglected unemployment insurance programs bar workers with disabilities equal access to the benefits of a major social insurance program and how the Americans with Disabilities Act (ADA) can be used as a tool to prevent states from discriminating against individuals with disabilities in the absence of modernized unemployment laws. While more legislative action is needed to serve all workers, using the ADA is a novel solution to prevent states from unjustly denying unemployment benefits to workers with disabilities.

Lisa Martin, Modernizing Capacity Doctrine, 73 Fla. L. Rev. 821 (2021). Federal capacity doctrine has largely remained the same for more than a century. It continues to presume that all children are incapable of directing their own cases, and that adults must litigate on children’s behalf. But since that time, our understanding of children—especially adolescents—has significantly evolved. This Article contends that it is time to modernize capacity doctrine to better account for the capabilities of adolescents and support their transition to adulthood.

Emily Suski, Subverting Title IX, 105 Minn. L. Rev. 2259 (2021). This Article argues that the lower courts’ assessments of the deliberate indifference standard annul its complete meaning. They consequently permit K–12 schools’ responses to sexual harassment that both risk and actually cause further such harassment. This Article offers an original taxonomy of those vapid, yet permissible, responses to student sexual harassment, and it is the first to demonstrate how those responses effectuate the very harms that Title IX and the deliberate indifference standard could protect against. The lower courts’ anemic applications of the deliberate indifference standard thus subvert Title IX in purpose and effect. To reinvigorate Title IX, this Article proposes recasting the deliberate indifference standard and a framework for its assessment. 

 

Clinical Education & Legal Education

Priya Baskaran, Taking Our Space: Service, Scholarship, and Radical Citation Practice, 73 Rutgers University Law Review 891 (2021). This essay highlights the importance of using radical citation practice to uplift and amplify voices of women of color within the legal academy as part of larger anti-racist and intersectional efforts. 

Susan L. Brooks, with Rachel E. Lopez, Teaching in the Service of Community, Book Chapter in Int'l Volume on Clinical Legal Ed (Forthcoming, Title TBA). This chapter explores the continuing story of one community lawyering clinic situated in West Philadelphia in the United States. It also represents the second installment in these co-authors’ ongoing discussions and reflections about the design and development of the Clinic, and a follow up to an article we published together in 2015 when the Clinic was still very much in its infancy. This chapter focuses mainly on the interplay between two core objectives of the Clinic, teaching law students and promoting community accountability, which sometimes are complementary and other times seem like competing goals. Specifically, we discuss the complexity of working in a clinic that is both deeply committed to being responsive to a particular community‘s expressed interests and to fostering the agency and self-direction that will help our students thrive as legal professionals.

Susan L. Brooks, with Marjorie A. Silver, Sarah Fishel, and Kellie Wiltsie, Moving Toward a Competency-Based Model for Fostering Law Students' Relational Skills, Clinical Law Review (April 2022, Forthcoming). Legal education has long been criticized for failing to provide adequate professional training to prepare graduates for legal practice realities. Many sources have lamented the lack of sufficient attention to the range of competencies necessary for law graduates to be effective practitioners and develop a positive professional identity, including those that are intra-personal, such as self-awareness, critical self-reflection, and self-directedness; those that are interpersonal, such as deep and reflective listening, empathy, compassion, cross-cultural communication, and dialogue; and those that engage with the social/systemic dimension of lawyering, such as appreciating the role of multiple identities, implicit bias, privilege and power, and structural racism. For this article, we refer to this entire set of competencies as relational competencies. One notable exception to this sustained critique of legal education has been the field of clinical legal education, including law school clinics and externships. Nevertheless, what is still lacking is a more systematic approach to clinical law students' supervision around the knowledge, skills, and values connected to relational competencies. In this article, we aim to begin a conversation about how we can move to a competency-based approach to supervision of law students' in clinics and externships. We draw significant guidance from the field of psychology, where there is a well-established track record in using a competency-based approach to supervise trainees. By emphasizing the importance of relational competencies in legal education, we can more effectively promote well-being among students, their current and future clients, and the legal profession's culture. Ultimately, we hope to invite a broader conversation about a more holistic approach to legal professionals' licensing and ongoing supervision.

Tamar Ezer, Teaching Writing Advocacy in a Law Clinic Setting, 27(2) CLINICAL LAW REVIEW 167 (2021). Written advocacy is a critical lawyering skill and vital component of student work in many clinics. This is certainly true in appellate advocacy and policy-based clinics, such as my own focused on human rights advocacy. Teaching written advocacy requires a deliberate and thoughtful pedagogy, just as with other aspects of clinical teaching. There is a rich literature on teaching legal writing, but only sparse discussion of its applicability in the fast-paced law clinic setting, where written products have real world consequences and need to be of high quality. This article delves into this literature and argues that written advocacy consists of three core components: writing strategically, writing logically, and writing with heart. Teaching written advocacy thus entails supporting students in shifting into a mindset of persuasive writing, strengthening argument coherence, and developing narratives that resonate with an audience. This article then proposes supervision and feedback methods to strengthen each core component, identifying lessons from the literature for the law clinic context, as well as engaging in self-reflection and assessment of techniques with which our Human Rights Clinic is currently experimenting.

Anne Gordon, Better Than Our Biases: Using Psychological Research to Inform Our Approach to Inclusive, Effective Feedback, 27 Clinical Law Review 195 (2021). This paper draws on legal, pedagogical, and psychological research to create a practical guide for clinical teaching faculty in understanding, examining, and mitigating our own biases. It details practical steps for reducing bias, including engaging in long-term debiasing, reducing the conditions that make us prone to bias, and adopting processes that keep us from falling back on our biases. 

Michael Haber, with C. Benjie Louis, Meeting the Needs of Disaster Survivors: Third Responders (David H.K. Nguyen ed., 2021). This chapter describes the creation of the Disaster Recovery Clinic at Hofstra Law School in the wake of Superstorm Sandy, focusing on the development of our pedagogical goals and course design.

Lindsay M. Harris, with Hillary Mellinger, Asylum Attorney Burnout and Secondary Trauma, 56 Wake Forest L. Rev 733 (2021). In the midst of a crisis of mental health across all practice areas; this article shares the results of a survey of 718 asylum attorneys. The article provides data to inform stakeholders, considers trauma exposure, and normalizes discussing burnout and secondary trauma within various legal settings. The piece argues for a fundamental shift in legal education and the legal profession in how we think, talk, and teach about the psychological realities of lawyering.

Rachael Kohl, with Nancy Vettorello, How Serving Jobless Workers During the Pandemic’s Economic Recession Grounded Students: A Reflection from Michigan’s Workers’ Rights Clinic, (Fall 2021, CLINICAL LAW REVIEW).

Hiroko Kusuda, Addressing the Challenges in American Legal Education Amid the COVID-19 Pandemic, 15 Rinsho Hogaku Seminar [Clinical L. Seminar] 63 (2021) (Japan). An overview of the rule changes and modifications adopted by ABA, AALS and American Law Schools in response to the Covid-19 pandemic.

Hiroko Kusuda, Special Immigrant Juvenile "Green Card" Marathon: Clinical Model in the Era of COVID-19, 13 HosoYosei to Rinsho Kyuiku [Lawyers and Clinical Education] 74 (2021) (Clinical Legal Education Association, Japan). An article highlighting the Loyola Immigration Clinic's successful two-day event to help over 60 immigrant youth to apply for Adjustment of Status in the height of Covid-19 pandemic to explore a potential for a hybrid model for future clinical legal education.

Hiroko Kusuda, Transformation of U.S. Lawyers: Challenges and Initiatives, 82 Hikakuho Kenkyu [Comp. L. J.] 18 (2020-2021) (Japan).

Medha D. Makhlouf, with Emily Benfer, James Bhandary-Alexander, Yael Cannon, and Tomar Pierson-Brown, Setting the Health Justice Agenda: Addressing Health Inequity and Injustice in the Post-Pandemic Clinic, 28 Clinical L. Rev. 45 (2021). The COVID-19 pandemic surfaced and deepened entrenched preexisting health injustice in the United States. Racialized, marginalized, poor, and hyper-exploited populations suffered disproportionately negative outcomes due to the pandemic. The structures that generate and sustain health inequity in the United States—including in access to justice, housing, health care, employment, and education—have produced predictably disparate results. The authors, law school clinicians and professors involved with medical-legal partnerships, discuss the lessons learned by employing a health justice framework in teaching students to address issues of health inequity during the pandemic. The goal of health justice is to eliminate health disparities that are linked to structural causes like subordination, discrimination, and poverty. This Article suggests six maxims for law school clinics to advance health justice, centering on themes of transdisciplinary collaboration, upstream interventions, adaptability, racial justice, systemic advocacy, and community-based strategies. The discussion draws on analyses of the scholarly literature on medical-legal partnerships and examples from the authors’ clinics. These maxims for health justice are particularly relevant during a global public health emergency, but they also transcend the current moment by contributing to the long-running cross-clinic dialogue about teaching and designing clinics for social justice.

Paul Radvany, Experiential Leadership: Teaching Collaboration Through a Shared Leadership Model, 27 CLIN. L. REV., 309 (2021). Lawyers serve as leaders throughout our society, and it is more important than ever that these leaders are effective in order to address the country’s challenges. Yet few lawyers have had any formal leadership training. Contrary to popular belief, leadership opportunities are not limited to those who serve in traditional positional leadership roles because leadership is increasingly thought of as an influence process. Thus, lawyers have many opportunities to lead, including leading their colleagues who are peers. As a result, the opportunities to lead can come early in a lawyer’s career, even in law school. This Article provides a framework for students to learn and practice leadership skills while taking a clinic. The clinic is an ideal setting to teach leadership because so much of the work is accomplished by teams in a collaborative manner. The author adopts a Shared Leadership Model of collaboration where students take turns leading and supporting each other throughout the semester. Clinical professors are ideally situated to provide leadership training as they are experts in teaching skills. As a result, by using the Shared Leadership Model, students will have the opportunity to learn and practice leadership skills in an experiential setting and be equipped to lead early in their careers.

  

Community Economic Development

Ted De Barbieri, Supporting Small Businesses in Place, 48 Fordham Urb. L.J. 1107 (2021). How do lawmakers support small businesses most deserving of assistance in places most in need of governmental support? As a means for approaching this question, this Essay examines two recent laws — the Paycheck Protection Program and the Opportunity Zone tax incentive. 

Michael Haber, Covid-19 Mutual Aid, Anti-Authoritarian Activism, and the Law, 67 Loy. L. Rev. 61. This article presents a historical overview of mutual aid and describes common legal issues being confronted by COVID-19 mutual aid groups, including questions related to: (1) risk, liability, and entity formation and structure, and (2) raising and distributing money and goods, and how these activities may be taxed. 

Luz E. Herrera, Amber Baylor, Nandita Chaudhuri, and Felipe Hinojosa, Evaluating Legal Needs, 36 Notre Dame Journal of Law, Ethics & Public Policy ___ (2021). This article is the first to explore legal needs in the Rio Grande Valley of Texas - a region that is predominantly Latinx and has both rural and urban characteristics. There are few legal needs assessments of majority Latinx communities, and none that examine needs in areas that are also U.S. border communities. Access to justice studies often overlook this area of the U.S. and this segment of the population despite their unique qualities. Latinos are projected to constitute the largest ethnic group in the country by 2060, making it imperative that we study access to justice-related assets, needs, opportunities, and barriers that currently exist within majority-Latinx communities. Legal needs assessments are a first step to innovations in legal service innovation, public education campaigns, and legal reform. Such assessments will help us to effectively address access to justice concerns.

Dana Thompson, with Gowri Krishna and Kelly Pfeifer, Caring for the Souls of Our Students: The Evolution of a Community Economic Development Clinic During Turbulent Times, 28 Clinical Law Review 243 (2021). This essay highlights the ways in which the pandemic school year influenced significant rethinking of one CED clinic’s operations: first, the pandemic sharpened the clinic’s mission to provide transactional legal services to nonprofit and community-based organizations, social enterprises, and neighborhood-based small businesses in Detroit and in other disinvested urban areas in the region; and second, it prompted the clinic to attempt to foster a culture of care within the virtual classroom. As an epicenter of pandemic, racial, and political turmoil over eighteen months (and counting), Detroit offered a unique setting to engage students in thinking critically about the role of lawyers in assisting communities in their efforts toward economic, racial, and social justice during the pandemic year and beyond.

  

Constitutional Law

Kate Sablosky Elengold, with Jonathan D. Glater, Qualified Sovereignty, Wash. L. Rev. (forthcoming 2022). Sometimes acts of the federal government cause harm; sometimes acts of contractors hired by the federal government cause harm. In cases involving the latter, federal contractors invoke the sovereign’s constitutionally granted and doctrinally expanded supremacy to restrict avenues for the injured to recover even from private actors. In prior work, we analyzed how federal contractors exploit three “sovereign shield” defenses—preemption, derivative sovereign immunity, and derivative intergovernmental immunity—to evade liability, accountability, and oversight.This Article considers whether, when, and how private federal contractors should be held accountable in a court of law. We argue that a contractor should be required to qualify before it can derive the immunity enjoyed by its sovereign partner. This Article proposes that a private contractor be entitled to such “qualified sovereignty” only if it satisfies three conditions: (1) it was acting as the government’s agent, (2) it complied with any guidelines established by the government, and (3) it was reasonable for the contractor to believe that its conduct would not violate rights protected by law.

Kate Sablosky Elengold, with Jonathan D. Glater, The Sovereign in Commerce, 73 Stan. L. Rev. 1101 (2021). The federal government is increasingly a commercial actor, providing retail services directly through its own agencies and indirectly through private sector contractors. Our prior work in these pages examined how a muddle of doctrines that form a sovereign shield can be exploited by contractors and the executive branch to evade civil liability and regulatory oversight. This Article argues that the solution to the sovereign-shield problem lies in redefining the question. In determining whether an actor enjoys the sovereign shield’s protection from liability and regulation, this Article proposes that the analysis should turn on the nature of the activity performed, not the identity of the actor performing it. If the activity is fundamentally commercial, the actor—whether a government agency acting on its own or through its contractor—should not be protected. This Article outlines a protocol for courts to implement such a proposal, drawing on well-established doctrines dating back to Supreme Court decisions from the early nineteenth century. Shifting to this activity-based approach would help preserve balances of power between states and the federal government, between the executive and legislative branches, and between businesses and consumers. 

Kate Sablosky Elengold, with Jonathan D. Glater, The Sovereign Shield, 73 Stan. L. Rev. 969 (2021). As the federal government has come to rely increasingly on private companies to perform government functions, more businesses are testing the power of the resulting contractual relationships to shield themselves from liability, regulation, and oversight. Such nongovernmental entities seek the benefit of what we call the federal government’s sovereign shield by exploiting three doctrines: preemption, derivative sovereign immunity, and intergovernmental immunity. This Article untangles the doctrines that extend the sovereign shield to private actors and exposes the alliance that such extension enables between the executive branch and businesses. We explain how this alliance shifts the balance of power in three ways: in favor of the federal government at the expense of the states, in favor of the executive branch at the expense of the legislature, and in favor of private enterprise at the expense of consumers

Naomi Mann, Classrooms into Courtrooms, 59 Hous. L. Rev. 363 (2021). While courts have long warned against turning classrooms into courtrooms, the 2020 DOE Rule nonetheless imposed a mandatory quasi-criminal courtroom procedure for Title IX sexual harassment investigatory proceedings in schools. This transformation is a reflection of the larger trend of importing criminal law norms and due process protections into Title IX school proceedings.

 

Criminal Justice

Amber Baylor, Criminalized Students, Reparations, and the Limits of Prospective Reform, 99 WASH. U. L. REV. ______ (2022). Recent reforms discourage schools from referring students to criminal law enforcement for typical disciplinary infractions. Though rightly celebrated, these reforms remain mere half-measures, as they emphasize prospective decriminalization of student conduct without grappling with the harm to generations of former students—disproportionately Black —who have been targeted by criminalizing policies of the past. Through the lens of reparations theory, this Article sets out the case for retroactive and reparations-based redress for the criminalization of students. Reparations models reposition moral norms. They acknowledge state harm, clarify the losses to criminalized students, allow for expansive forms of redress, and cast restoration of opportunity as a project to benefit society broadly.

Mira Edmonds, The Reincorporation of Prisoners into the Body Politic: Eliminating the Medicaid Inmate Exclusion Policy (June 7, 2021). Georgetown Journal on Poverty Law and Policy, Vol. XXVIII, No. 3, 2021, U of Michigan Public Law Research Paper No. 21-027. Incarcerated people are excluded from Medicaid coverage due to a provision in the Social Security Act Amendments of 1965 known as the Medicaid Inmate Exclusion Policy (“MIEP”). This Article argues for the elimination of the MIEP as an anachronistic remnant of an earlier era prior to the massive growth of the U.S. incarcerated population and the expansion of Medicaid eligibility under the Patient Protection and Affordable Care Act of 2010.

Nicole B. Godfrey, Creating Cautionary Tales: Institutional, Judicial, and Societal Indifference to the Lives of Incarcerated Individuals, 74 Ark. L. Rev. 365 (2021). It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, issued the above-quoted clarion call to protect the lives of incarcerated people on May 14, 2020. At that point, the COVID-19 pandemic had brought American society to a standstill for a little more than two months, and it had begun to wreak havoc on American prisons nationwide. Despite Justice Sotomayor’s hopes that the nation’s prisons might avoid becoming cautionary tales, the realities of and legal doctrines governing the American system of mass incarceration all-but insured that American prisons would become a site of mass casualty to the COVID-19 pandemic. This Article explains why.

Aaron Littman, Free-World Law Behind Bars, 131 Yale L.J. (forthcoming 2022).

Aaron Littman, Jails, Sheriffs, and Carceral Policymaking, 74 Vand. L. Rev. 861 (2021).

Rachel Moran, Doing Away With Disorderly Conduct, 63 B.C. L. Rev. __ (forthcoming 2022). Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language. Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people. Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order. This article calls for their abolition. The article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict.

Rachel Moran, with Jessica Hodge, Law Enforcement Perspectives on Public Access to Misconduct Records, 42 Cardozo L. Rev. 1237 (2021). This article summarizes the results of a research project which surveyed hundreds of law enforcement administrators (primarily police chiefs and sheriffs) on their experiences with and attitudes toward disclosure of misconduct records. Several dozen administrators also participated in follow-up phone interviews. The project is, to the best of the authors’ knowledge after an extensive interdisciplinary literature review, the first systematic effort to gather data on the topic of how laws regulating public access to law enforcement misconduct records affect law enforcement agencies, officers, and the communities in which those officers work.

Renagh O’Leary, Compassionate Release and Decarceration in the States, 107 Iowa L. Rev. (forthcoming 2022). This Article uses compassionate release as a case study in the possibilities and limits of early release measures as tools for decarceration in the states. It argues that to be effective tools for decarceration, compassionate release and other early release measures must reduce the obstacles to release for people incarcerated for violent convictions. This Article models this approach with concrete suggestions for how states can reform their compassionate release measures.

Jeffrey Selbin, with Cristina Mendez and Gus Tupper, Blood from a Turnip: Money as Punishment in Idaho, 57 Id. L. Rev. 767 (2021). Through the lens of a recent legislative report and major Supreme Court case on fines and fees in Idaho, we explore the state’s growing reliance on monetary sanctions as punishment and revenue, with a focus on juvenile delinquency fees. We situate Idaho’s scheme in the larger context of how monetary sanctions contribute to mass criminalization and racial injustice, recommending specific steps for reform in Idaho and beyond to end the harmful impact of monetary sanctions.

Lindsey Webb, True Crime and Danger Narratives: Reflections on Stories of Violence, Race, and (In)Justice, 24 J. Gender Race & Just. 131 (2021). In the United States, white people have long told both overt and veiled narratives of the purported danger and criminality of people of color. Sometimes known as ‘danger narratives,’ these gruesome accounts often depict the kidnapping, assault, and murder of white women at the hands of men of color. These narratives have been used to promote and justify enslavement, lynching, mass incarceration, and a host of other methods and institutions of white supremacy and racial control. While white people have been creating and consuming danger narratives, they have also been telling other stories about crime. Like danger narratives, these stories, known as ‘true crime,’ have existed for centuries, purport to be based on actual criminal acts, and largely focus on violence against white women. Like danger narratives, true crime stories are intended to invoke feelings of horror and shock among their audiences and suggest specific methods--arrest, incarceration, or death of the perpetrator--by which social order may be restored. Unlike danger narratives, however, true crime stories focus almost exclusively on white-on-white crime. Scholars and others often characterize danger narratives as violence-focused stories with explicit racial and racist intent and outcomes, while true crime is generally treated in the media as entertainment, in which crime and punishment are explored largely as if people of color do not exist. This Article challenges this disparate treatment, arguing that true crime narratives serve to justify and support institutions of racial control while claiming racial impartiality. The study of these stories may nevertheless contribute to abolitionist and anti-racist revisioning of our criminal system, as the focus on justice in true crime narratives can inform and inspire alternative visions of justice which are in service to racial equity rather than in support of racial subjugation.

 

Disability & Health Law

Yelena Duterte, Splendid Isolation: VA’s Failure to Provide Due Process Protections and Access to Justice to Veterans and Their Caregivers, 29 J. L. & Pol'y 1 (2020). In order to stop the VA from arbitrarily kicking veterans out of its Caregiver Program, Congress or the VA must institute due process protections. This Article proposes five changes the government should make to the VA Caregiver Program to give veterans and their caregivers proper due process protections, including the right to: (1) an impartial adjudicator; (2) a hearing; (3) an impartial expert; (4) an adequate decision; and finally, (5) judicial review.

Yelena Duterte, with Stacey Rae Simcox and Angela Drake, Review of Veterans Law Decisions of the Federal Circuit, 2020 Edition, 70 AM. U. L. REV. 1381 (2021). This Article continues last year’s in-depth review of veterans law cases decided by the Federal Circuit, published by the American University Law Review. In the year 2020, the Federal Circuit further clarified the law applicable to veterans cases, including the parameters of the class action device and the need for robust
analysis in cases challenging agency delay and inaction. The court significantly expanded veterans’ ability to challenge regulations and manual provisions directly in the Federal Circuit. It created new law with regard to the presumption of competency applicable to Department of Veterans Affairs (VA) examiners and explored the parameters of VA’s duty to sympathetically read claims. The Federal Circuit also issued important decisions regarding “effective dates” impacting the amount of money veterans can receive where claims linger for years in the adjudicative process. Finally, the court confirmed the validity of VA’s definition of willful and persistent misconduct.

Allyson Gold, with Benjamin McMichael and Alicia Gilbert, Socially Distant Healthcare, 96 Tulane L. Rev.__ (forthcoming 2022). Congress recently considered Protecting Access to Post-COVID-19 Telehealth Act of 2021, which seeks to remove barriers to accessing telehealth. This Article explores the policy experimentation catalyzed by the COVID-19 pandemic to make specific policy prescriptions aimed at alleviating both acute and chronic access-to-care issues. It argues that, following the pandemic, federal agencies and states should continue to dismantle barriers to telehealth as an important tool for increasing access-to-healthcare providers among residents of rural areas and minority communities that have historically lacked reliable access to providers.

Allyson E. Gold, with Srinivas Parinandi, Allen Slater and Tyler Garrett, Advancing Positive Water Rights, 81 Maryland L. Rev.__ (forthcoming 2022). This Article is the first to empirically examine water utility disconnection moratoria enacted in response to COVID-19. This analysis seeks to identify the conditions favorable for the United States to advance a positive right to water, even after the pandemic ends. Following the analysis, the Article evaluates the applicability of the Fifth Amendment and the Contracts Clause to determine the constitutional contours of a positive right to water. Finally, the Article assesses and suggests improvements to current American water policies to expand water access without exceeding constitutional limitations. 

Medha D. Makhlouf, Health Care Sanctuaries, 20 Yale J. Health Pol'y, L. & Ethics 1 (2021). It is increasingly common for noncitizens living in the United States to avoid seeing a doctor or enrolling in publicly funded health programs because they fear surveillance by immigration authorities. This is the consequence of a decades-long shift in the locus of immigration enforcement activities from the border to the interior, as well as a recent period of heightened immigration enforcement. These fears persist because the law incompletely constrains immigration surveillance in health care. This Article argues that immigration surveillance in health care is a poor choice of resource allocation for immigration enforcement because it has severe consequences for health and the health care system; additionally, it compromises the legitimacy of the state vis-à-vis its noncitizen residents. The consequences include public health threats, health care system inefficiency, ethical dilemmas, and increased vulnerability in immigrant communities. Laws permitting immigration surveillance in health care also create legitimacy harms by obstructing noncitizens’ access to health care and undermining their privacy and rights to public benefits. The COVID-19 pandemic starkly illustrates these dangers, but they exist even in the absence of a novel disease outbreak. Health care access for noncitizens has largely been left to the vagaries of immigration policy. Immigration surveillance in health care should prompt us to consider the scope and limits of health law and the role of discretion in immigration law. Health care sanctuaries —durable legal protections against immigration surveillance in health care —recover some of the lost equilibrium between immigration enforcement and other goals and values of public policy.

Medha D. Makhlouf, Laboratories of Exclusion: Medicaid, Federalism & Immigrants, 95 N.Y.U. L. Rev. 1680 (2020). Medicaid’s cooperative federalism structure gives states significant discretion to include or exclude various categories of immigrants. This has created extreme geographic variability in immigrants’ access to health coverage. This Article describes federalism’s role in influencing state policies on immigrant eligibility for Medicaid and its implications for national health policy. Although there are disagreements over the extent to which public funds should be used to subsidize immigrant health coverage, this Article reveals that decentralized policymaking on immigrant access to Medicaid has weakened national health policy. It has failed to incentivize the type of state policy experimentation and replication that justifies federalism arrangements in other contexts. Rather, federalism has (1) enabled states to enact exclusionary policies that are ineffective and inhumane and (2) created barriers for states to enact inclusionary policies that advance the normative goals of health policy. This Article concludes that immigrant access to health coverage is best addressed through centralized policymaking. This Article contributes to scholarly conversations about federalism and health care by providing a case study to test the efficacy of federalism arrangements in achieving equity for those who were left behind by health reform. More broadly, it adds to the federalism literature by synthesizing insights from three fields that rarely comment on one another: health law, immigration law, and federalism theory.

Medha D. Makhlouf, with Patrick J. Glen, A Pathway to Health Care Citizenship for DACA Beneficiaries, 12 Calif. L. Rev. Online 29 (2021). Since 2012, beneficiaries of Deferred Action for Childhood Arrivals (DACA) have enjoyed a certain normalization, however tenuous, of their status in the United States: they can legally work, their removal proceedings are deferred, and they cease to accrue unlawful presence. Regarding subsidized health coverage, however, DACA beneficiaries remain on the outside looking in. Although other deferred action beneficiaries are eligible for benefits through Medicaid, the Children’s Health Insurance Program, and the Affordable Care Act, the Obama Administration specifically excluded DACA beneficiaries. This decision undermines DACA’s goal of legitimizing beneficiaries’ presence in the United States. From a health policy perspective, it weakens efforts to improve health care equity, health care system efficiency, and public health. Changed circumstances in immigration and health policy justify a change in the policy excluding DACA beneficiaries from subsidized health coverage. It is no longer necessary to subordinate health-related interests to the decade-old, constrained choices of immigration policymakers. As a necessary stopgap on the way to immigration reform and health reform, the Biden Administration should eliminate the DACA carve-out and extend the benefits of subsidized health coverage to all deferred action beneficiaries. The DACA carve-out is a useful case study illustrating how value-laden notions of deservingness in the laws governing eligibility for subsidized health care create systemic costs in the health care system and can harm public health.

 

Domestic Violence

Mary A. Lynch, Building an Anti-Racist Prosecutorial System: Observations from Teaching A Domestic Violence Prosecution Clinic, 73 Rutgers U. L. Rev. 1515 (2021). To free herself from violent, ongoing abuse, a survivor of color must entrust her life - literally - to the protection of a law enforcement and justice system that has repeatedly failed to earn that trust. In examining the intersection of racism and misogyny as it plays out in criminal law, this article primarily focuses on the desires of criminal victim-survivors regarding prosecution of intimate partners as documented in social science literature. 

 

Economic Justice

Dana Thompson, Lawyers as Social Engineers: How Lawyers Should Use Their Social Capital to Achieve Economic Justice, 26 Mich. J. Race & L. 1 (2021). This article asserts that progressive transactional lawyers should adopt Charles Hamilton Houston's vision of a social engineer lawyer to provide legal and non-legal resources and support to Black-owned small businesses and Black-led nonprofits and community organizations to enhance their viability.

 

Environmental Law

Priya Baskaran, Thirsty Places, 2021 Utah Law Review 501 (2021), This Article provides a novel, comparative analysis of communities lacking potable water in Flint, Michigan, and southern West Virginia. Recent water crises occur within communities categorized as Geographically Disadvantaged Spaces (“GDS”), which often encompass urban and rural areas. What is more, people of color and economically vulnerable populations are often located within GDS, disproportionately burdening these groups with the economic and public health consequences of failing water infrastructure. The GDS lens highlights entrenched structural problems present in rural and urban contexts, as implicating compound socioeconomic and race-related inequalities that transcend such seeming geographic divides. 

Sophia Kruszewski, with Samuel Ingraham, Planting the Seed: A Proposal for a Farm Operation Test Under the FSMA Produce Safety Rule, 13 Ky. J. Equine, Agric. & Nat. Res. L. 1 (2021). Under what circumstances might the Food Safety Modernization Act (“FSMA”) Produce Safety Rule (“PSR”) treat multiple, legally separate, farm enterprises as a single operation? Although Congress enacted the FSMA in 2011, and the PSR in 2015, the classification of farms with multiple enterprises remains unsettled, particularly for smaller-scale, diversified farms that straddle the line between fully covered and qualified exempt under the PSR. This article proposes a standardized farm operation test that all farmers and PSR regulators could utilize when determining the coverage status of a farm with multiple enterprises.

 

Family Law

Josh Gupta-Kagan, Confronting Indeterminacy and Bias in Child Protection Law, 33 STAN. L. & POL’Y REV. __ (forthcoming 2022). The child protection legal system faces strong and growing demands for change following at least two critiques. First, child protection law is substantively indeterminate; it does not precisely prescribe when state agencies can intervene in families, thus granting wide discretion to child protection agencies and family courts. Second, by granting such discretion, the law permits race, class, sex, and other forms of bias to infect decisions. This Article extends these critiques through a granular analysis of how indeterminacy at multiple decision points builds on itself, and identifies several areas of legal changes necessary to confront this indeterminacy and bias and transform the child protection legal system.

Joan Meier, Denial of Family Violence in Court: An Empirical Analysis and Path Forward For Family Law, 110:4 Georgetown Law Journal -- (2022). This article presents original empirical research by the author and a team of social scientists along with case narratives demonstrating custody courts' widespread rejection of even corroborated allegations of paternal abuse. It contrasts the extensive critical literature from the domestic violence field with mainstream family law scholarship, which betrays a lack of awareness or understanding of these realities of family court practices in cases involving abuse. After positing that courts' (and scholars') attitudes are fueled by psychological denial and facilitated by parental alienation theory, the article proposes two new legal frameworks to (i) soften the human tendency to avoid horrible realities and (ii) reduce the misuse of parental alienation theory toward that end.

Joan Meier, Questioning the scientific validity of parental alienation labels in abuse cases, in Jean Mercer and Margaret Drew, Eds., CHALLENGING PARENTAL ALIENATION: New Directions for Professionals and Parents, Chapter 11, pp. 216-235 (Routledge: 2022). This chapter surveys the claims of scientific validity of the "parental alienation" concept which presumes that a child's disaffection for a non-custodial parent is driven by the toxic interference of the custodial parent in custody litigation. After discussing the inadequacy of existing relevant research, and the lack of scientific support for the key tenets of parental alienation theory, it critiques the new multifactorial or "hybrid" approach in which alienation and abuse are posited to both contribute to a child's "alienation." While the hybrid approach appears more reasonable in theory, it is actually more problematic in practice, because it allows professionals to minimize the impact of abuse and to continue to prioritize even abusive parents' access to children in the name of responding to "alienation."

Joan Meier, with Sean Dickson, Chris O-Sullivan, and Leora Rosen, The Trouble with Harman and Lorandos’s Attempted Refutation of Meier et al. Study, in press, J. Fam. Trauma, Child Custody & Child Development. This is the first of two papers rebutting a paper that claimed to disprove the findings in the authors' empirical study of family courts. This paper shows that the critics' own study is profoundly flawed, in both its statistical and non-statistical methods, analyses, and findings. It also shows that the critics reported known erroneous data while not reporting the corrected data (which produced no statistically significant results).

Joan Meier, with Vivek Sankaran, Breaking Down the Silos that Harm Children: A Call to Child Welfare, Domestic Violence and Family Court Professionals, Virginia Journal of Social Policy & the Law, Vol. 28:3 (2022). Co-authored by a domestic violence law professor and a juvenile justice and child welfare law professor, this paper depicts the gulf in practice between custody courts adjudicating children's "best interests" and child welfare agencies whose mission is to protect children's safety. While both systems are assumed to maximize children's safety and well-being, historical, procedural, and cultural institutional norms lead to both systems' avoidance and failure to protect children at risk from an abusive parent when both systems are involved. Three concrete and viable policies and practices are proposed to end the silos and protect at-risk children.

 

Gender Justice, Women & the Law

Marcy L. Karin, with Margaret E. Johnson & Elizabeth B. Cooper, Menstrual Dignity and the Bar Exam, 55 UC DAVIS L. REV. 1 (2021). This Article examines the issue of menstruation and the administration of the bar exam. It includes original study and analysis of experiences with menstruation and the bar exam and the policies and practices of Boards of Law Examiners relevant to menstruation. It also proposes a comprehensive Model Policy that appropriately balances BOLE concerns against the important principles of privacy and respect, fairness and non-discrimination, promoting health, providing accommodations, and transparency. 

Emily Suski, Institutional Betrayals As Sex Discrimination, 107 Iowa L. Rev. – (2022) (forthcoming). Title IX jurisprudence has a theoretical and doctrinal inadequacy. Title IX’s purpose is to protect public school students from sex discrimination in all its forms. Yet, courts have only recognized three relatively narrow forms of sex discrimination under it. Title IX jurisprudence, therefore, cannot effectively recognize as sex discrimination the independent injuries, called institutional betrayals, that schools impose on students because they have suffered sexual harassment. As a remedy, this Article develops a theory of institutional betrayals as a new form of sex discrimination under Title IX.  

 

Housing

Ted De Barbieri, with Michelle D. Layser, Tracy Kaye, Blaine Saito, and Andrew Greenlee, Mitigating Housing Instability During a Pandemic, 99 Oregon L. Rev. 445 (2021).

Davinda Finger, with Kevin Callison and Isabella Smith, Covid-19 Eviction Moratoriums and Eviction Filings: Evidence from New Orleans, 46 Housing and Society 1 (2021). Securing stable housing to prevent the spread of infection during the COVID-19 pandemic remains a concern among policymakers in the US. In this article, we provide a descriptive analysis of the association between COVID-19-related eviction moratoriums and eviction filings in New Orleans, Louisiana. 

Davinda Finger, with Kevin Callison and Isabella Smith, New Orleans Evictions During COVID-19 (2020), 30 J. Affordable Housing 227 (2021). When the COVID-19 pandemic arrived in 2020, rental housing problems quickly impacted about one-third of low-income households in the United States. This paper examines the impacts of various housing policies on tenants’ housing rights and security of tenure during the COVID-19 pandemic in New Orleans, Louisiana, between March and December 2020.

Allyson E. Gold, Redliking: When Redlining Goes Online, 62 William & Mary L. Rev. 1841 (2021). This Article examines the liability of websites like Airbnb for discrimination experienced by minority short-term rental hosts. The ability of anti-discrimination laws originally enacted to abolish redlining and protect minority consumers to combat redliking is complicated by the fact that sites like Airbnb serve multiple purposes; while guests use the platform to identify and book lodging, hosts use the site to advertise available accommodations. Looking to judicial interpretation of online speech and platform operator liability, this Article proposes two approaches – a general function test and a fragmented function test – to determine website liability for discrimination against short-term rental hosts. 

 

Human Rights

Sarah Dávila A., TIME TO WAKE UP! PUSHING THE BOUNDARIES IN THE AMERICAS TO PROTECT THE MOST VULNERABLE. This article proposes that the Inter-American right to a healthy environment provides the possibility of protecting the human rights of the most vulnerable in the Americas by providing a rights-based framework for them to vindicate their environmental human rights. This article focuses on vulnerable populations who have been historically marginalized and discriminated against and/or who are reliant on the natural resources in their environments. This article poses that the “greening” of human rights, which is the traditional approach to the protection of environmental human rights, is not sufficient to protect vulnerable non-indigenous communities. The “greening” of human rights has been effective in the protection of indigenous and tribal populations but has left non-indigenous populations without protection

Lauren E. Bartlett, “One of the greatest human tragedies of our time”: The U.N., Biden, and a Missed Opportunity to Abolish Immigration Prisons, 42 MITCHELL HAMLINE L.J. PUB. POL'Y & PRAC.__(2021). After providing a brief overview of international human rights law prohibiting immigration prisons, this essay explores U.N. recommendations on immigration prisons from each of the Universal Periodic Reviews of the United States over the past ten years, as well as the U.S. responses to those recommendations

Tamar Ezer, with Eric Tars, Melanie Ng, David Stuzin and Conor Arevalo, Challenging Domestic Injustice through International Human Rights Advocacy: Addressing Homelessness in the United States, 42(3) CARDOZO LAW REVIEW 913 (2021). This piece explores how international human rights norms and procedures can serve as a powerful tool in addressing injustice in the U.S. context, using work addressing the criminalization of homelessness as a case study. Moreover, it explores how civil and political rights and negative obligations by the government can serve as an entry point for asserting a more robust understanding of rights that includes social and economic rights and affirmative obligations by government. The piece documents and analyzes original work led by the National Homelessness Law Center and other pioneering advocates, reflecting on lessons learned and next steps to make the human right to housing a legal obligation in our country.

David R. Katner, Delayed Responses to Child Sexual Abuse, the Kavanaugh Confirmation Hearing, and Eliminating Statutes of Limitation for Child Sexual Abuse Cases, 47 American Journal of Criminal Law 1 (2020). Delays of 30 or more years before sexual abuse victims report their victimization is not uncommon and is well recognized by professionals who work with victims. The 2019 confirmation hearing of Judge Brett Kavanaugh for appointment to the U.S. Supreme Court focused on testimony by Dr. Christine Blasey Ford who claimed she had been sexually assaulted by Kavanaugh in the summer of 1982. The hearing renewed interest in calling for elimination of statutes of limitation for child sex abusers, given the balancing of public policy issues against the realization of the dynamics of victims' silence often for many years following their victimization. 

David R. Katner, Torture, Professional Ethics, Accountability?, ___Loyola University Chicago Law Journal___(forthcoming). As international and domestic legal systems have failed to hold accountable the various licensed professionals who helped President George W. Bush enact and engage in "enhanced interrogations" that involved waterboarding and other tortures of detainees in U.S. custody in violation of domestic and international laws, challenging or revoking the licensure of these professionals would set forth and promote compliance with ethics codes for lawyers, physicians, psychologists and other healthcare professionals

David R. Katner, Trump's Policy of Putting Kids in Cages: Six dead, Thousands Separated from Parents, Making America Great Again?, 28 Virginia Journal of Social Policy & the Law 88 (2021). The Trump Administration's policy of separating children from their families as they attempted to leave their home countries and seek asylum in the U.S. was intentionally needless and cruel, threatening the mental and physical health of children and their caregivers. The negative outcomes for children were considered by the administration in an effort to turn impoverished children into hostages, the nation's newly established immigration policy

 

International Law

Rajika L. Shah, The Role of Law in Enabling Postgenocide Recovery: The Relevance of Restitution, in Postgenocide Interdisciplinary Reflections on the Effects of Genocide (Klejda Mulaj, ed., OUP 2021). This chapter assesses the importance of restitution and compensation in the post-Holocaust setting. While Holocaust survivors and their heirs have worked towards achieving some degree of restitution from actors complicit in the crimes, restitution for other genocide victim groups has been a challenge. Yet, since the Holocaust, international and domestic law increasingly require compensation for the victims of mass atrocities. Law is thus an imperfect but crucial instrument in the toolkit of postgenocide responses.

 

IP, Technology, and Privacy

Michele E. Gilman, Feminism, Privacy & Law in Cyberspace, in The Oxford Handbook of Feminism and Law in the United States (Martha Chamallas, Deborah Brake & Verna Williams eds., Oxford U. Press, 2021). This chapter presents an overview of the oppression women and other marginalized people suffer through a loss of privacy in the digital age and the efforts that activists have taken to ameliorate the harms of cyberspace and to shape privacy norms in a feminist and inclusive manner.

Michele E. Gilman, Periods for Profit and the Rise of Menstrual Surveillance, 41 Colum. J. Gender & Law 100 (2021). This Essay examines the privacy harms resulting from the Femtech industry, which sells technology to help women understand and improve their health. It seeks to reconceptualize Femtech within an expanded menstrual justice framework that recognizes the tenets of data feminism. 

Michele Gilman, with Mary Madden, Digital Barriers to Economic Justice in the Wake of COVID-19, Data & Society Research Paper, April 21, 2021. This report identifies three major digital barriers to economic justice arising from the pandemic: the collapse of benefits automation, expanded workplace and school surveillance, and the digital profiling of economic distress.

Nicole K. McConlogue, Discrimination on Wheels: How Big Data Uses License Plate Surveillance to Put the Brakes on Disadvantaged Drivers, WVU College of Law Research Paper, 2021-009, Stanford Journal of Civil Rights and Civil Liberties, Vol. 18 (Forthcoming).

Nina Srejovic, Copyright Protection for Works in the Language of Life, 97 Wash. L.R. __ (forthcoming 2022). Scholars have argued that DNA sequences, like computer programs, are copyrightable “literary works.” The Copyright Office lists DNA sequences and compounds as “works” that do not constitute copyrightable subject matter. This Article proposes that in order to protect copyrightable content while guarding against copyright protection for genetic DNA sequences, DNA compounds should not be treated as “works” under the Copyright Act but rather as the media in which potentially copyrightable works are stored.

 

Labor & Employment

Angela Cornell, with Mark Barenberg, The Cambridge Handbook of Labor and Democracy. Angela Cornell’s new book, an edited volume entitled The Cambridge Handbook of Labor and Democracy is out this month. In addition to co-editing the volume with Mark Barenberg of Columbia University, she wrote the introduction and a chapter titled “Labor’s Obstacles and Democracy’s Demise.” It is published by Cambridge University Press in their series of Cambridge Law Handbooks, the online version should be available online in January and in print shortly thereafter: https://www.cambridge.org/core/books/cambridge-handbook-of-labor-and-democracy/B7526F2DCB69305B2FBC5AFE8EF30FB7. The volume brings together an interdisciplinary collection of social science and legal scholars providing cross-regional perspectives on labor and democracy in the United States, Europe, Latin America, Africa, and Asia. The chapters build on and update an extensive body of literature that explores the role of organized labor and the working class in the historical construction of democracy, examining a range of more recent cases in non-Western parts of the world. The contributors also explore the efforts of labor unions to construct novel forms of social citizenship by deepening or extending democratic practices to broader spheres of social and economic relationships. The volume breaks new ground in the analysis of recent patterns of democratic erosion, examining its relationship to the political weakening of organized labor and, in several cases, the political alliances forged by workers in contexts of nationalist or populist political mobilization.

Elizabeth Ford, Wage Recovery Funds, Forthcoming, California Law Review, Fall 2022. There is a well-documented epidemic of wage violations affecting low-wage workers in the United States. This article, Wage Recovery Funds, argues that the administrative enforcement process is so overwhelmed that in order to recover unpaid wages more quickly for more workers, enforcement agencies often settle for wages only, leaving interest unpaid. In this way, the system transfers wealth from the victims of wage theft – disproportionately low wage workers, women, and people of color – to the perpetrators. This is not the result of malicious intent. It is a practical solution to a real problem: how can an understaffed and underfunded agency get workers their wages quickly enough that the money could still make a difference in their lives? The consistent and institutionalized answer has been to resolve the enforcement action in exchange for the payment of wages only. The paper then argues for the creation of a Wage Recovery Fund (“WRF”) whose purpose is to provide workers with meritorious claims immediate, complete relief while they wait for their claims to be adjudicated.  

 

Race & Law, Critical Race Theory

Heather Abraham, Segregation Autopilot: How the Government Perpetuates Segregation and How to Stop It, 107 Iowa Law Review ___ (forthcoming July 2022). Racial segregation is a defining feature of the American landscape. Scholars have thoroughly documented the government’s historic collusion in segregating people. But far from correcting its reprehensible past, the government continues to perpetuate segregation today. As if on autopilot, its spending and regulatory activities routinely reinforce housing segregation. Not only is this immoral and bad policy, it is against the law. The government has a statutory duty to reduce housing segregation in how it conducts government business. This duty arises from a unique civil rights directive passed by Congress over fifty years ago in the Fair Housing Act of 1968. The “affirmatively furthering fair housing” (“AFFH”) mandate imposes an overlooked and under-enforced obligation on every federal agency—not just HUD—to take affirmative steps to reduce segregation. This article offers a first-of-its-kind audit of the government’s performance, exposing numerous examples of how it sustains segregation, then proposes an administrative law framework to counteract the government’s segregative influence.

 

Tax & Nonprofits

Ted De Barbieri, Who Do Place-Based Tax Incentives Benefit?, __ PITTSBURGH TAX REV. (forthcoming 2021).

 

Tribal Law, Federal Indian Law

Kristine A. Huskey, The Case for Tribal Healing to Wellness Veterans Courts, UMKC Law Review (forthcoming). This article addresses the military service of American Indians and Alaska Natives(AIAN) and the negative consequences that may result from their service, such as PTSD and substance abuse. As has been seen in the general Veteran population, these negative consequences can lead to misconduct. In response, many local, state, and federal courts established Veterans Treatment Courts to address the underlying problems of Veterans through treatment instead of incarceration/fines. In recent years, some have advocated that these veteran-focused treatment courts be similarly established in Tribal Healing to Wellness Courts. This article supports the call to address the unique issues of justice-involved AIAN Veterans by merging the two courts within Tribal justice systems.

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