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Michèle Alexandre, Race, Space and Democracy: Locally-Based Strategies for Development, 44 The Harbinger 1 (2019)Clicking on the button will copy the full recommended citation.
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Cynthia Hawkins DeBose and Brien V. Squires, Throwing the Baby Out with the Bath: Florida’s Flawed Approach to Post-Adoption Inheritance, 18 Conn. Pub. Int. L.J. 187 (2019)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, Bruce Jacob: A leading Voice in Public Defense, 48 Stetson L. Rev. 305 (2019)Clicking on the button will copy the full recommended citation.
This Essay examines the events that led to Dean Emeritus Bruce Jacob being the recipient of the National Association of Criminal Defense Lawyers’ (NACDL) prestigious Champion of Indigent Defense Award. Dean Jacob represented the State of Florida in the Gideon v. Wainwright case, arguing for adherence to Betts v. Brady which did not provide the right to counsel for indigent state defendants absent special circumstances. After arguing Gideon in the Supreme Court, he spent much of his career advocating for indigent defendants’ rights to effective assistance of counsel. Although some may find an irony in these two roles, this Essay notes the symmetry when looking at Dean Jacob as a true “minister of justice.”
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Michèle Alexandre, Calling for a Community Economic Development Code of Ethics, 28 J. Affordable Housing & Commun. Dev. L. 219 (2019)Clicking on the button will copy the full recommended citation.
On January 5, 2019, a group of legal scholars convened a Discussion Group at the AALS 2019 Annual Meeting to examine “race and privilege in Community Economic Development (CED)” with the goal of identifying how CED practice, in general, and experiential and doctrinal law school courses incorporating CED themes, more specifically, “serve to build bridges across racial and socioeconomic boundaries.” Comprised of both clinicians and non-clinicians, this group of scholars was asked to present elements of their individual research that spoke to this and related questions. Many insights were revealed and tested during this discussion. This essay reflects on a notion during the discussion around which there seemed to be consensus and enthusiastic support: that the sustainability of CED practice, as social movement, academic discipline, and legal service could be enhanced by articulating new guiding principles or a code of ethics to ground CED practice in normative principles applicable to communities across the country. The authors of this essay seek to memorialize that discussion and offer a roadmap for the creation of these principles/code of conduct by surfacing and exploring three specific questions:
(1) Why does this endeavor seem crucial?;
(2) How should CED practitioners create and formalize this statement of principles or code of ethics?; and
(3) What would be appropriate CED outcomes in light of the adoption of this statement of principles/code of ethics?
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Ciara Torres-Spelliscy, Deregulating Corruption, 13 Harv. L. & Pol'y Rev. 471 (2019)Clicking on the button will copy the full recommended citation.
The Roberts Supreme Court has, or to be more precise the five most conservative members of the Roberts Court have, spent the last twelve years branding and rebranding the meaning of the word “corruption” both in campaign finance cases and in certain white-collar criminal cases. Not only are the Roberts Court conservatives doing this over the strenuous objections of their more liberal colleagues, they are also breaking with the Rehnquist Court’s more expansive definition of corruption. The actions of the Roberts Court in defining corruption to mean less and less have been a welcome development among dishonest politicians. In criminal prosecutions, politicians convicted of honest services fraud and other crimes are all too eager to argue to courts that their convictions should be overturned in light of the Supreme Court’s lax definition of corruption. In some cases, jury convictions have been set aside for politicians who cite the Supreme Court’s latest campaign finance and white-collar crime cases, especially Citizens United v. FEC and McDonnell v. United States. This Article explores what the Supreme Court has done to rebrand corruption, as well as how this impacts the criminal prosecutions of corrupt elected officials. This Article is the basis of a chapter of Professor Torres-Spelliscy’s second book, Political Brands, which will be published by Edward Elgar Publishing in late 2019.
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Jason Bent, Osha, the Opportunism Police, 2019 BYU L. Rev. 365 (2019)Clicking on the button will copy the full recommended citation.
When is paternalistic regulation of risky work justified, and who should get to decide that question? The prevailing economic account of OSHA regulation is that market interventions are justified only by spillover and informational market failures. This article challenges that prevailing account by contending that worker safety regulations are also justified where necessary to enforce the relational expectations of employees, which are shaped not only by formal contract but also by social norms and norms internal to the employment relationship. Drawing on the relational theory of contract, this article identifies an underappreciated purpose for employment law: anti-opportunism. If preventing relational opportunism is a valid purpose for workplace safety law, then OSHA regulation is justified in a broader range of circumstances than has been generally assumed under more traditional analyses. This article contends that regulation is justified where necessary to prevent employers from engaging in self-interested behavior that runs contrary to the parties’ relational expectations. Applying this standard is a highly context-specific, fact-dependent task, which makes Congress' decision to delegate enforcement authority to OSHA appropriate.
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Ciara Torres-Spelliscy, From a Mint on a Hotel Pillow to an Emolument, 70 Mercer L. Rev. 705 (2019)Clicking on the button will copy the full recommended citation.
Is President Trump illegally profiting from the Presidency? Answering this question actually requires complex constitutional interpretation that breaks new legal ground and could change the rules for all future presidents.1The answer may also impact thosewho wish to deal with President Trump’s businesses. Depending on the outcome of cases invoking the Constitution’s two Emoluments Clauses,2many commercial interactions with the Trump Organization that are kosher today, may be ruled unconstitutional tomorrow.
This piece explores the early litigation over whether President Trump violated both the foreign emoluments clause and the domestic emoluments clause of the U.S. Constitution. Litigation over these matters was still on-going in 2020.
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Will Bunting, The Impact of Data Mining on Information Disclosure by Regulatory Agencies: With an Application to Redlining, 56 Harv. J. on Legis. 355 (2019)Clicking on the button will copy the full recommended citation.
Data mining techniques can be used to locate statistical outliers that are incorrectly characterized as evidence of unlawful conduct. Using home mortgage loan data made publicly available by financial regulators, a simple data mining exercise finds that approximately three percent of all lender-MSA pairs (or approximately seven to nine percent of all lending institutions) flagged as having redlined minority neighborhoods is attributable to a failure to correct for the multiple hypothesis testing problem. The false positive rate does not fully explain, however, the estimated high frequency of statistical redlining. Three possible models of information disclosure by regulatory agencies are considered: (1) full information, (2) no information, and (3) limited information. Under a limited information model, litigation serves to correctly implement statistical hypothesis testing: a plaintiff must formulate a hypothesis prior to examination of the data and obtains the information necessary to test this hypothesis only through discovery.
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Kirsten K. Davis, Reading Legal Writing Together: Reading Groups Can Build the Disciplinary Community of Legal Writing Scholars, 23 Legal Writing 31 (2019)Clicking on the button will copy the full recommended citation.
This essay describes how a reading group of scholars can help develop community in a scholarly discipline.
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Jason S. Palmer, Emotional Intelligence and Homophobia, 54 Wake Forest L. Rev. 1135 (2019)Clicking on the button will copy the full recommended citation.
Emotional intelligence dictates that individuals react in a certain way because they are wired to respond emotionally to certain triggers. These emotional triggers can be either positive or negative. Those who understand the use of negative emotional intelligence can channel manipulative behavior into concrete outcomes as a direct result of the feelings created. Negative emotional intelligence thus can be used to perpetuate groupthink, which leads to bias, prejudice, stereotypes, and stigmatization.
Bias, both deliberate and implicit, is still prevalent with regard to the lesbian, gay, bisexual, and transgender (“LGBT’) community despite the strides and advances that have occurred since the Supreme Court ruling in Obergefell v. Hodges. This proposition is demonstrated in “religious freedom” arguments presented in the Supreme Court case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. It is also apparent in the Department of Defense’s “national security” approach to transgender individuals. The use of these terms — “religious freedom” and “national security” — allows people to mask their implicit bias and permits marginalization of this minority group.
This Article will demonstrate that by using the lenses of religious freedom, religious speech, and national security, anti-LGBT bias can be disguised and the dignity of LGBT individuals harmed. These lenses allows individuals to argue that it is not homophobic to refuse to bake a cake or take wedding photos, or that it is not transphobic to ban transgendered individuals from military service, but rather it is a principled stand based on religious beliefs and national security. To counter these negative attacks, positive emotional intelligence must be reinforced through reiterating and reflecting on how values such as equality and dignity should uphold the social good and not be used to harm a disenfranchised and minority group.