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Jason Bent, Fairness in Algorithmic Employment Selection: How to Comply with Title VII, 35 A.B.A. J. Lab. & Emp. L. 241 (2021)Clicking on the button will copy the full recommended citation.
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Christine E. Cerniglia, Creating Legal First Responders: Requiring Service Hours for Admission to the Bar, 14 John Marshall Law Journal 74 (2021)Clicking on the button will copy the full recommended citation.
When Covid-19 created unprecedented medical needs in 2020, the medical profession swiftly responded by creating pathways for medical students to graduate early and become first responders. The medical profession quickly adapted and students asked to enter the profession early in order to serve. As frontline responders to the pandemic, the medical profession cultivated a deeper understanding of their responsibility and integrity to serve the larger community.
Meanwhile, the legal profession wrestled with how to maintain the unnecessary barriers to enter the profession instead of focusing on the unprecedented legal needs created by the pandemic. Decisions to safely administer a bar exam or allow entry through diploma privilege were important concerns but did not focus on the needed legal response for lawyers to address the access to justice gap. The heavy dependence on the National Conference of Bar Examiners became evident as many jurisdictions waited for NCBE's decisions when states could release the standardized exams, while bar applicants were at the mercy of decision-makers and unable to enter the profession.
This article highlights the disruption to bar admissions during the summer of 2020 and advocates that supervised practice and a service requirement is now possible for admission into the profession. The article proposes a 500-hour service requirement for admission to cultivate service leadership and create legal first responders to address the rising legal needs in the community. The supervised practice rules adopted this past summer by thirty-one jurisdictions showcases the ability to implement such a requirement and allow the profession to come together to implement change.
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Andrew D. Appleby, Subnational Digital Services Taxation, 81 Md. L. Rev. 1 (2021)Clicking on the button will copy the full recommended citation.
Existing tax regimes fail to tax digital services appropriately. Digital services based on extracting and monetizing user data-most notably digital advertising-are particularly problematic because tax regimes do not adequately account for the enormous value derived from user data.
Internationally, taxing jurisdictions have recognized these failures and commenced a controversial push toward new digital services taxes, or DSTs. Subnational taxing jurisdictions in the United States face the same issues and are searching for solutions.
This Article begins by examining the motivations and justifications for digital service taxation at both the international and subnational levels. These justifications center on antiquated tax regimes that do not sufficiently capture profit from new business models, particularly business models that rely on valuable data extracted from users in the taxing jurisdiction.
Next, this Article presents options for subnational digital service taxation. These options range from slightly modified existing tax regimes to novel approaches that may more appropriately tax digital services, specifically those services that extract and monetize user data. This Article also analyzes the constitutional, federal preemption, and sourcing challenges facing subnational digital services taxes.
This Article concludes by examining how subnational taxing jurisdictions may most effectively tax digital services. Although states have started to embrace digital advertising taxes modeled after European digital services taxes, these taxes are narrow and susceptible to challenge. Subnational jurisdictions have several better options, including publicly traded stock-based taxes and data mining taxes.
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Will Bunting, Curbing the Anticompetitive Impact of Commercial Land Use Regulation: An Administrative Approach, 66 Vill. L. Rev. 681 (2021)Clicking on the button will copy the full recommended citation.
This Article explores how the anticompetitive impact of a zoning ordinance is assessed under the antitrust laws and substantive due process and concludes that neither is likely to satisfactorily curb the anticompetitive impact of commercial land use regulation. The Article highlights the distinction between a local government’s zoning power and its more general police power. For rational basis review to act as a meaningful check on zoning power, as distinguished from more general police powers, this Article contends that such review must require a local government to produce evidence of a causal link between the zoning action and the stated government interest. Rejecting antitrust law as the proper doctrinal vehicle through which to curb the anticompetitive impact of commercial zoning restrictions, this Article proposes a three-part administrative procedure, grounded in notions of due process and the legitimate exercise of a locality’s zoning power, to reduce the frequency with which local governments impose socially inefficient restrictions on commercial land use. The concept of an economic impact statement is introduced.
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Sasha M. Albert et al., Passing State Legislation to Protect the Rights of Parents with Disabilities: Lessons from Interviews with Advocates, Attorneys, and Legislators, 33 Journal of Disability Policy Studies 15 (2021)Clicking on the button will copy the full recommended citation.
Parents with disabilities experience discrimination within the child welfare, family law, and adoption and foster care systems. In response, there have been increasing calls for states to pass legislation prohibiting discrimination against parents with disabilities, and as of 2020, 28 states have passed or are considering such legislation. This qualitative study explored the perspectives of 19 advocates, attorneys, and legislators on barriers and solutions for passing legislation to protect the rights of parents with disabilities. Participants identified three barriers: (a) legislators’ pejorative attitudes toward parents with disabilities, (b) external opposition, and (c) legislative barriers. Participants also identified eight solutions: (a) cross-disability advocacy, (b) education, (c) relationship-building, (d) bipartisanship, (e) support from state and national organizations, (f) strong sponsors, (g) incrementalism, and (h) model legislation. Study findings should help to inform ongoing legislative advocacy to protect the rights of parents with disabilities.
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Will Bunting and James M. Lammendola, Why Localism is Bad for Business: Land Use Regulation of the Cannabis Industry, 17 N.Y.U. J. L. & Bus. 267 (2021)Clicking on the button will copy the full recommended citation.
This Article provides a survey of land use restrictions related to cannabis dispensaries and examines how localities have used such restrictions to control where this new land use can locate. Several of these zoning ordinances have been challenged in court as preempted by state or federal law, and this Article examines a few of these cases. The Article considers both policy and legal arguments against the regulation of cannabis dispensaries by local governments, setting forth the legal argument that zoning ordinances that ban, or substantially restrict, activities or operations related to cannabis may, in certain circumstances, constitute an improper application of a locality’s delegated zoning power. This Article also highlights localism in the context of women’s reproductive rights as an important case study in the importance of having state statutes that expressly preempt local government action related to potentially locally unwanted land uses.
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Robyn Powell, Confronting Eugenics Means Finally Confronting Its Ableist Roots, 27 William and Mary Journal of Race, Gender, and Social Justice 607 (2021)Clicking on the button will copy the full recommended citation.
In September 2020, a whistleblower complaint was filed alleging that hysterectomies are being performed on women at an immigration detention center in alarmingly high rates. Regrettably, forced sterilizations are part of the nation’s longstanding history of weaponizing reproduction to subjugate socially marginalized communities. While public outrage in response to the whistleblower complaint was swift and relentless, it largely failed to acknowledge how eugenic ideologies and practices, including compulsory sterilizations, are ongoing and deeply entrenched in ableism. Indeed, a conversation that recognizes the ways in which eugenics continues to target people with disabilities is long overdue.
This Article contextualizes how eugenics has targeted people with disabilities over time, the ways in which these ideologies and practices persist, and why analysis and advocacy concerning eugenics—including the current abuses at immigration detention centers—that do not center the experiences of people with disabilities, especially people with disabilities who are also members of other socially marginalized communities, are inadequate. First, the Article explores the evolution of eugenics and its harmful effects on people with disabilities in the United States, including contemporary examples of eugenic policies and practices. Next, it describes ableism and its relation to eugenics, highlighting how eugenics is deeply rooted in ableism. Finally, the Article concludes by suggesting a path forward that addresses the role of ableism in eugenics, specifically discussing normative legal and policy implications. It also considers opportunities for collaboration across communities.
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Robyn Powell and Joann Nicholson, Addressing Risk Factors Among Parents with Serious Mental Illness: Commentary on Ostrow et al., 72 Psychiatric Services 466 (2021)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli and Richard W. Murphy, Supreme Court News, 46 Administrative & Regulatory Law News 20 (2021)Clicking on the button will copy the full recommended citation.
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R. T. Kingsford et al., Ramsar Wetlands of International Importance–Improving Conservation Outcomes, 9 Frontiers in Environmental Science 1 (2021)Clicking on the button will copy the full recommended citation.
The Ramsar Convention (or the Convention on Wetlands), signed in 1971, was one of the first international conservation agreements, promoting global wise use of wetlands. It has three primary objectives: national designation and management of wetlands of international importance; general wise use of wetlands; and international cooperation. We examined lessons learnt for improving wetland conservation after Ramsar’s nearly five decades of operation. The number of wetlands in the Ramsar Site Network has grown over time (2,391 Ramsar Sites, 2.5 million km2, as at 2020-06-09) but unevenly around the world, with decreasing rate of growth in recent decades. Ramsar Sites are concentrated in countries with a high Gross Domestic Product and human pressure (e.g., western Europe) but, in contrast, Ramsar Sites with the largest wetland extent are in central-west Africa and South America. We identified three key challenges for improving effectiveness of the Ramsar Site Network: increasing number of sites and wetland area, improved representation (functional, geographical and biological); and effective management and reporting. Increasing the number of sites and area in the Ramsar network could benefit from targets, implemented at national scales. Knowledge of representativeness is inadequate, requiring analyses of functional ecotypes, geographical and biological representativeness. Finally, most countries have inadequate management planning and reporting on the ecological character of their Ramsar Sites, requiring more focused attention on a vision and objectives, with regular reporting of key indicators to guide management. There are increasing opportunities to rigorously track ecological character, utilizing new tools and available indicators (e.g., remote sensing). It is critical that the world protect its wetlands, with an effective Ramsar Convention or the Convention on Wetlands at the core.