This Note coordinates the Eighth Amendment Excessive Fines Clause with the Fourteenth Amendment wealth-discrimination protection set forth in Bearden v. Georgia. It is generally assumed that the two protections operate independently: while the Excessive Fines Clause protects individuals against exorbitant financial obligations, Bearden limits the state from converting criminal...
This Note argues that the United States’ practice of disenfranchising people with felony convictions runs counter to modern human rights law as expressed in the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Although these treaties are non-self-executing, I suggest that they can be...
Pharmacy benefit managers (PBMs) manage the drug benefits for over ninety percent of Americans with prescription drug coverage. However, conflicts of interest inherent in the PBM business model create perverse incentives for drug price increases. The most significant conflict of interest arises from manufacturer rebates paid to PBMs. PBMs negotiate rebates from drug manufacturers...
A Pretext . . . For What? In March 2018, Commerce Secretary Wilbur Ross announced that the Trump Administration would add a question to the 2020 census asking the citizenship status of all persons in the United States. The question, Secretary Ross asserted, would generate “complete and accurate [citizenship] data” that the Department of Justice (DOJ) could use to better enforce...
The modern-day sex trade is “hidden in plain sight.” Traffickers use and exploit legitimate businesses to engage in and conceal their illegal practices. From nightclubs to travel agencies, massage parlors to car dealerships, a wide variety of industries fail to scrutinize suspicious activity or take adequate precautions, while the most egregious actors actively solicit and...
This Note examines the implementation of the Native American Graves Protection and Repatriation Act and finds that repatriation has generated significant public benefits by making collecting institutions better fulfill their role as stewards and researchers. This is contrary to existing critiques of cultural property laws that argue that repatriation is a compromise by the public...
Evidence-based policy is gaining attention, and legislation and agency regulation have been no exception to calls for greater uptake of research evidence. Indeed, current interest in “moneyball for government” is part of a long history of efforts to promote research-based decisions in government, from the U.S. Census to cost-benefit analysis. But although evidence-based policy...
Consumers routinely supply personal data to technology companies in exchange for services. Yet, the relationship between the utility (U) consumers gain and the data (D) they supply — “return on data” (ROD) — remains largely unexplored. Expressed as a ratio, ROD = U / D. While lawmakers strongly advocate protecting consumer privacy, they tend to overlook ROD. Are the benefits of...
Public health problems have a political economy rooted largely in public and private laws that both reflect the distribution of power in society and shape its policy responses. In this Article, we apply this perspective to the U.S. opioid crisis, which was triggered by a quadrupling of opioid prescribing beginning in the mid-1990s. Such staggering increases in opioid use are...
Professors Alan Mislove and Christo Wilson wanted to test a number of housing and employment website algorithms for the presence of hidden discrimination. While algorithms do not have any predisposition against any group, faulty programming can create deplorable discriminatory effects.2 Without testing, it can be difficult to tell which algorithms discriminate and on what grounds...
In 2014, news of a water crisis in Flint, Michigan, shook the nation. Tests conducted after months of public complaints confirmed investigators
As images of neo-Nazis marching through our streets fill our screens, and reports of a growing number of hate crimes sweep the country, how can the Community Relations Service (CR5), a small component of the US Department of Justice created by the Civil Rights Act of 1964, help preserve democracy? What is at stake when the Trump Administration threatens to essentially eliminate...
This Article challenges two widely-embraced theories about how public intimate spaces (e.g, toilets, locker rooms, showers, etc. hereinafter called "bathrooms') first became separated by sex. The first challenged theory claims that the very first instance of sex-separation in public bathrooms occurred in 1739 at a ball held at a restaurant in Paris. Under this first view, sex...
Legal scholars have long recognized that the media plays a key role in assuring the proper functioning of political and business markets Yet we have understudied the role of law in assuring effective media scrutiny. This Article develops a theory of law as source. The basic premise is that the law not only regulates what the media can or cannot say, but also facilitates media...
Wage theft inflicts serious harm on America's working poor but has received little attention from policymakers seeking to address income inequality in the United States. This Article provides a comprehensive analysis of the causes of the wage theft crisis and the failure of the current enforcement regime to address it. It argues that existing policy reforms will fail, because...
Thirty years ago, the environmental justice movement emerged as a powerful critique of traditional environmentalism, which had largely ignored the distribution of environmental harms and the ways in which those harms were concentrated on the poor and communities of color. This Article calls for a similarly groundbreaking reimagination of both mainstream environmental policy and...
An unlikely statutory candidate has recently emerged to aid the federal prosecution of state and local public corruption: the criminal civil rights statutes. In the wake of newly placed limitations on other sources of criminal liability in this area, the government's reliance on these statutes may increase in the future. Given the contentious nature of the debate concerning the...
Section 939A of the Dodd-Frank Wall Street Reform and Consumer Protection Act requires federal agencies to identify, remove, and replace all references to credit ratings in their regulations. It responds to longstanding concerns heightened by the recent financial crisis-that investors place undue reliance on the opinions of a small number of eminently fallible (and perhaps...
In today's economically vibrant and high-cost cities like New York, San Francisco, and Washington, D.C., housing growth and housing affordability are a function of two variables: zoning and politics. This Article focuses on both in an edge case-New York City's three fastest-growing ethnic and immigrant enclaves, where larger households, lower incomes, and greater place-dependence...
Given the overlapping interests between child welfare and education, one might expect federal laws and policies in these two areas to work in tandem. But in the United States, they have not. With food, nutrition, and early childhood programs among the few exceptions, welfare and education laws have largely been embodied in separate statutes and administered by different agencies...
Since the American Revolution, mortgage foreclosures have consisted of a public auction of the mortgaged property. Judges and state legislators at the time believed that an auction was the best way to obtain a fair price for the land. Though that belief soon proved to be mistaken, the sale method remains unchanged.
The world is in the throes of a clean energy revolution. This revolution has led to the ongoing demise of coal, and a shift towards clean and efficient energy sources like wind and solar. Despite these advances, the process of producing food for human energy remains extraordinarily dirty and inefficient. This Essay explores what it would look like to graft clean energy policy...
Deepening racial and socioeconomic segregation is producing unequal educational outcomes at the K-12 level, outcomes that are then reproduced in higher education. This is particularly true as rising competition among colleges has led many of them to focus increasingly on measures of merit that correlate with income and as parents and students adjust their behavior in light of...
Millennials are losing interest in ownership. They prefer to access property as needed on a casual, short-term basis. Prompted by the sharing economy, online platforms, and ethical consumerism, access presents a radical alternative to established property forms. This type of property use is popular among younger, technology-savvy generations.
In the 1940s and 1950s, the administrative state served as a powerful engine of discrimination against homosexuals, with agency officials routinely implementing anti-gay policies that reinforced gays