Articles

Children have legal rights. Yet, children typically lack the legal capacity to represent their interests in courts. When federal courts are presented with children’s claims, the Federal Rules of Civil Procedure require courts to ensure that children’s legal interests are adequately protected. To do so, courts decide who can speak and make decisions for the child within the litigation. Federal Rule of Civil Procedure 17(c) maps out a loose process for addressing these concerns but fails to fully account for a critical factor in protecting child litigants: the decisionmaking rights of parents. 

Because parents have constitutionally protected authority to make important decisions for their children, litigation brought on a child’s behalf presents a collision of rights and obligations between parents, children, and “the state,” here, the federal courts. Court doctrine interpreting Rule 17(c) is tangled and inconsistent and fails to offer clear guidance regarding what preference, if any, parents should have to represent their children’s interests in litigation. This Article proposes for the first time that constitutional doctrine establishing parents’ protected decisionmaking authority should make parents the default representatives for their children in federal civil litigation. The Article presents an account of court practices and an analytical framework to guide courts’ application of Rule 17(c), which implements the general constitutional rule of parent priority while upholding the courts’ responsibility to protect children’s interests. 

A century ago, captains of industry and their allies in government launched a social experiment in urban America: the abandonment of mass transit in favor of a new personal technology, the private automobile. Decades of investment in this shift have created a car-centric landscape with Dickensian consequences. In the United States, motor vehicles are now the leading killer of children and the top producer of greenhouse gases. Each year, they rack up trillions of dollars in direct and indirect costs and claim nearly 100,000 American lives via crashes and pollution, with the most vulnerable paying a disproportionate price. The appeal of the car’s convenience and the failure to effectively manage it has created a public health catastrophe. Many of the automobile’s social costs originate in individual preferences, but an overlooked amount is encouraged—indeed enforced—by law. Yes, the United States is car-dependent by choice. But it is also car-dependent by law. This Article conceptualizes this problem and offers a way out. It begins by identifying a submerged, disconnected system of rules that furnish indirect yet extravagant subsidies to driving. These subsidies lower the price of driving by comprehensively reassigning its costs to non-drivers and society at large. They are found in every field of law, from traffic law to land use regulation to tax, tort, and environmental law. Law’s role is not primary, and at times it is even constructive. But where it is destructive, it is uniquely so: Law not only inflames a public health crisis but legitimizes it, ensuring the continuing dominance of the car. The Article urges a reorientation of law away from this system of automobile supremacy in favor of consensus social priorities, such as health, prosperity, and equity. 

All punishment comes to an end. Most periods of imprisonment are term limited, and ninety-five percent of prisoners will eventually leave prison. Though it is tempting to think of the “end” in concrete, factual terms—for example, as the moment when the prisoner is released—this concept also has normative dimensions. Core to the notion of term-limited imprisonment is the “principle of return”: the idea that, when the prisoner has completed his or her time, that person is entitled to return to society. Yet, for the principle of return to be meaningful, it must include the idea of a fair chance of reestablishing oneself in the community. The “practices of incarceration”—including the prison environment and prison programs—are thus critically important because they can either facilitate or impede a prisoner’s reentry into society. However, apart from the question of whether conditions of confinement are cruel and unusual as defined by the Eighth Amendment, these practices of incarceration have largely avoided scholarly scrutiny. 

This Article uses the case study of higher education programs in prison to expose the interdependence between the practices of incarceration and the principle of return. Drawing on original interviews with key stakeholders, it investigates how the features of higher education programs reflect and reinforce core beliefs about the goals of punishment and the state’s responsibility towards those it incarcerates. The Article critically examines the dominant harm-prevention justification for prison higher education, and the desert-based objection to it, finding that both are inadequate for failing to take into account the principle of return. 

This Article espouses an alternative approach that would recognize the ongoing relationship between prisoner and polity and devise incarceration practices accordingly. Building on insights from communitarian theory, this approach, which foregrounds the prisoner’s status in the polity, uncovers pervasive “us-versus-them” narratives in the prison context. The first such narrative is between prisoners and those members of the polity who view prisoners, falsely, as having forfeited their claims to membership in civil society. This view of prisoners, as members of a permanent and lower caste, is in direct conflict with the principle of return, which mandates that prisoners have at least a plausible hope of basic reintegration into society and that they avoid further harm—what might be termed “punishment-plus.” The Article also scrutinizes a second, more localized “us-versus-them” narrative between prisoners and correctional officers, which arises from their similar backgrounds and the common deprivation experienced by members of both groups. 

Finally, the Article recommends institutional design changes to mitigate “us-versus- them” dynamics: empowering stakeholders, for example, by affording correctional officers educational opportunities that would help professionalize their role and ease their resentment towards prisoners; and increasing exposure and empathy between incarcerated and non-incarcerated populations, such as by piloting a program that would employ recent college graduates to teach in prison. These and other proposed reforms would refocus the conversation around imprisonment to account for the central role of incarceration practices in revitalizing the principle of return, as well as the inextricable connection between prisoner and polity. 

Policymakers on both ends of the political spectrum have been looking for ways to reduce prescription drug prices. Democrats have also been working on expanding healthcare coverage, including different versions of Medicare for All. All these proposals have been framed as issues of access and spending. If innovation incentives come up at all, it has primarily been because pharmaceutical companies claim that reducing drug prices will threaten innovation by lowering the returns from their patents. 

In fact, however, pharmaceutical access and innovation incentives are intimately related. Health insurance can change the structure of market demand. And Medicare in particular does so in a way that gives a very large subsidy to patented drugs, such that current U.S. pharmaceutical profits are often higher than they would be in an unsubsidized market. Medicare reimbursement rules thus can lead to greater-than-monopoly pricing of patented drugs, dramatically expanding the incentive U.S. policy provides to pharmaceutical companies. By not recognizing the Medicare innovation subsidy, policymakers have ignored one of the largest sources of innovation incentives. That extra incentive might be a good thing or a bad thing, depending on how much incentive pharmaceutical developers need. It may well be good for some classes of drugs and bad for others. But it is important for policymakers to understand how access policies like Medicare also serve as innovation incentives. This extra innovation subsidy may open the policy space for hybrid proposals that combine expanded government insurance like Medicare for All with lower drug prices while preserving or even increasing current returns to innovation. 

As of January 1, 2019, the federal government held more than 51,000 noncitizens in immigration detention. Over the course of a year, nearly half a million noncitizens will pass through Department of Homeland Security custody within the interior of the United States while the government initiates proceedings to remove them from the country. Many of those detainees pursue immigration relief and contest both their detention and removal. However, numerous reports from the Office of the Inspector General and immigration practitioners consistently observe substantial barriers to effective communication from detention: Detainees are frequently held in or transferred to isolated locations, detention facilities often do not provide adequate telephone access or even alternative forms of communication, and facilities often deny or substantially delay in-person meetings with attorneys or other visitors. These barriers significantly affect the ability of unrepresented detainees to gather and present relevant evidence critical to litigating their removal claims. They also undermine essential communication between legal counsel and the detainees they represent in those proceedings. 

This Article argues that due process imposes affirmative obligations on the government to facilitate evidence gathering and communication with legal counsel for those noncitizens that it detains. While previous scholarship has advanced arguments for “immigration Gideon”—i.e., suggesting noncitizens should have a right to appointed counsel at state expense—our intervention instead focuses on how conditions of confinement that impair communication with counsel and evidence gathering may themselves run afoul of noncitizens’ Fifth Amendment due process rights. 

We offer a novel interpretation of recent Supreme Court and circuit court precedents on civil detention in order to ground noncitizens’ right to communicative access in the Fifth Amendment and propose a new framework for evaluating noncitizens’ rights to effective communication. Importantly, we also argue that the scope of noncitizen detainees’ rights to communicate with counsel should not be determined by the stark division between criminal and civil detention precedents. Rather, noncitizens’ access to counsel rights should encompass the procedural protections due process requires whenever the government acts as both initiator of adverse legal proceedings and jailor, including those protections traditionally associated with the Sixth Amendment. Our analysis finds that the scope of governmental obligation to provide communicative access derives from the noncitizens’ liberty interest in avoiding both detention and deportation and, in particular, follows from the government’s dual role in immigration proceedings as both initiator of adverse proceedings and jailor. The obligation to ensure a “full and fair” hearing requires that the government not impose barriers to communication that provide it with an unfair advantage in the litigation of noncitizens’ removal claims. 

We conclude that the Fifth Amendment’s Due Process Clause imposes affirmative obligations for the government to facilitate evidence gathering and communication between noncitizen detainees and their counsel. While the scope of the state’s affirmative obligations may vary in accordance with the immigration status of the detainee, we argue that in all cases the Fifth Amendment requires the federal government to provide detained noncitizens adequate means to solicit legal representation, meet privately with retained counsel, communicate with potential witnesses, access necessary records, and prepare evidence and testimony. Conditions of confinement that frustrate these basic guarantees offend the Fifth Amendment’s protection of a full and fair hearing and should be held unconstitutional. 

Public school funding plummeted following the Great Recession and failed to recover over the next decade, prompting strikes and protests across the nation. Courts have done almost nothing to stop the decline. While a majority of state supreme courts recognize a constitutional right to an adequate or equal education, they increasingly struggle to enforce the right. That right is now approaching a tipping point. Either it evolves, or risks becoming irrelevant. 

In the past, courts have focused almost exclusively on the adequacy and equity of funding for at-risk students, demanding that states provide more resources. Courts have failed to ask the equally important question of why states refuse to provide the necessary resources. As a result, states have never stopped engaging in the behavior that leads to the funding failures in the first place.

This Article argues that states refuse to fully fund low-income students’ education because they have ulterior aims and biases—maintaining privilege for suburban schools, lowering taxes for wealthy individuals, and not “wasting” money on low-income kids. States go to extraordinary lengths to manipulate school funding formulas to achieve these ends. Thus, the various policies that produce inequality and inadequacy are not just benign state failures; they are intentional efforts to gerrymander educational opportunity. Understood this way, school funding manipulations violate federal equal protection and state constitutional rights to education. Reframing school funding failures as gerrymandering can both create a much-needed federal check on educational inequality and reinvigorate the enforcement of state constitutional rights to education. 

Judging from present-day legal and popular discourse, one might think that the Punishment Clause of the Thirteenth Amendment has always had one single, clear meaning: that a criminal conviction strips the offender of protection against slavery or involuntary servitude. Upon examination, however, it appears that the Amendment’s Republican framers took an entirely different view. It was the former slave masters and their Democratic allies in Congress who promoted the interpretation that prevails today. From their point of view, the text clearly specified that, once convicted of a crime, a person could be sold into slavery for life or leased for a term at the discretion of state legislatures and officials. But contemporary Republicans emphatically rejected that reading. They held that convicted persons retained protection against any servitude that was inflicted not as a punishment for crime but for some non-penological end, such as raising state revenue, generating private profits, or subjugating black labor. Within a few months of the Amendment’s ratification, the Republican majority in the Thirty-Ninth Congress had outlawed the early, race-based forms of convict leasing. When that proved insufficient, the House passed a bill outlawing race-neutral convict leasing, which the Senate postponed when the focus of Republican strategy shifted to black voting rights. 

The Republican reading faded from view after the Democratic Party regained control of the Deep South. For several decades, white supremacist regimes incarcerated African-American laborers en masse and leased them to private employers without facing a serious Thirteenth Amendment challenge. Present-day scholars sometimes treat this silence as evidence that the Amendment authorizes such practices. Courts similarly honor the Democratic reading on the assumption it has always prevailed. So thoroughly has it triumphed that even prisoners’ rights advocates accept it as constitutional truth. 

Neither courts nor advocates have, however, taken into account the framers’ views. Their interpretation sank from sight not because it was wrong but because Democratic paramilitaries terminated Reconstruction, freeing states to expand convict leasing and insulate it against challenges, constitutional or otherwise. Had the Republican reading been enforced during the era of convict leasing, it might have prevented one of the most barbaric and shameful episodes in United States history. And perhaps, if revived today, it might yet accomplish similar results. Nothing in the text, original meaning, or Supreme Court jurisprudence of the Punishment Clause blocks that path. 

This Article explores how the explosive growth of online streaming is transforming the market for creative content. Two decades ago, the popularization of the internet led to what we refer to here as the first digital disruption: Napster, file-sharing, and the re-ordering of numerous content industries, from music to film to news. The advent of mass streaming has led us to a second digital disruption, one driven by the ability of streaming platforms to harvest massive amounts of data about consumer preferences and consumption patterns. Coupled to powerful computing, the data that firms like Netflix, Spotify, and Apple collect allows those firms to know what consumers want in incredible detail. This knowledge has long shaped advertising; now it is beginning to shape the content streaming firms purchase or even produce, a phenomenon we call “data-driven creativity.” This Article explores these phenomena across a range of firms and content industries. In particular, we take a close look at the firm that is perhaps farthest along in its use of data-driven creativity. We show how MindGeek, the little-known parent company of Pornhub and a leader in the market for adult entertainment, has leveraged streaming data not only to organize and suggest content to consumers but even to shape creative decisions. MindGeek is itself the product of the same forces—the shift to digital distribution and the accompanying explosion of free content—that transformed mainstream creative industries and paved the way for the rise of streaming. We first show how the adult industry adapted to the first digital disruption; that story aligns with similar accounts of how creative industries adapt to a loss of control over intellectual property. We then show how MindGeek and other streaming firms such as Netflix, Spotify, and Amazon are leveraging the second digital disruption, using data to make decisions about content promotion, aggregation, dissemination, and investment. Finally, we consider what these trends suggest for competition and innovation in markets for creative work. By making creative production far less risky, data-driven creativity may drive down the need for strong IP rights and reshape conventional assumptions about the purpose and role of IP. At the same time, the rise of data-driven creativity may reinforce the tendency of online markets toward dominance by a few major firms, with significant implications for competition and innovation.

Credit default swaps (CDS) are, once again, making waves. Maligned for their role in the 2008 financial crisis and condemned by the Vatican, investors are once more utilizing CDS to achieve results of questionable market benefit. A CDS is a financial contract that allows investors to “bet” on whether a borrower will default on its loan. However, rather than waiting to see how their bets pan out, some CDS counterparties are collaborating with financially distressed borrowers to guarantee the profitability of their CDS positions—“engineering” the CDS’ outcome. Under the CDS contract, these collaborations are not prohibited, yet they have roiled the CDS market, leading some market participants to view the collaborations as a sign that CDS are little more than a rigged game. Conversely, some view “engineered CDS transactions” as an innovative form of financing for distressed companies. As engineered CDS transactions proliferate in the market, it becomes increasingly prudent to look beyond their contractual acceptability to assess whether, from a legal point of view, these transactions are permissible. 

Engineered CDS transactions demonstrate the challenges that the existing legal and non-legal framework face in effectively responding to new forms of market distortion. This Article examines the costs and benefits of engineered CDS transactions on the market as a precursor to determining whether legal intervention is needed. Assessment of the relative costs and benefits of engineered transactions indicates that despite their innovativeness, engineered CDS transactions are largely detrimental to the markets because they impose costs on actors unaffiliated with the CDS market and, more broadly, destroy public trust in the financial markets. Yet, despite their associated harms, legally, engineered transactions exist in a gray space. This Article analyzes the phenomenon of engineered CDS transactions, assessing the capacity of applicable legal frameworks, private standards, and market discipline to address these transactions, and finds each to be lacking. Consequently, this Article proposes a range of responses, including modernization of the existing anti- manipulation framework, to mitigate the harm and collateral consequences that stem from engineered CDS transactions. 

The #MeToo movement has ushered in a new kind of sexual misconduct accusation—accusation leveled through informal channels of communication. A functional analysis shows that unofficial reporting can advance important ends. But the rise of informal accusation should be of special concern to legal scholars and lawyers, who generally proceed from certain assumptions regarding the primacy of formal systems of accountability. These basic assumptions need revision if, by aiming to satisfy goals that our laws and legal institutions fail to achieve, informal reporting channels are serving as substitutes for the officially sanctioned mechanisms of accountability that monopolize scholarly attention. Unofficial reporting pathways are imperfect legal workarounds; their prevalence means that the law of sexual misconduct has been consigned to a relative state of quiescence. Over time, survivors, long disserved by the criminal law, by campus disciplinary processes, and by workplace complaint structures, have mostly turned away from the systems that have forsaken them. A needed redesign of official complaint channels should be informed by the benefits of informal reporting, along with a commitment to awakening law.