Volume 87, Number 4

October 2012

Correcting Race and Gender: Prison Regulation of Social Hierarchy Through Dress

Gabriel Arkles

This Article examines the enforcement of racialized gender norms through the regulation of dress in prisons. Dress, including hair and clothing, is central to the ways government and other institutions enforce hierarchical social norms. These norms are based on the intersection of race and gender, as well as religion, sexuality, class, age, and disability. For many people, dress is a way to express identity, exercise autonomy, practice religion, participate politically, experience pleasure, preserve health, or avoid violence. My review of prison dress regulations shows that prison systems commonly impose penalties including solitary confinement for deviations from dominant social norms. Examples of these deviations include wearing hair in an Afro, covering hair with a headscarf, or having long hair if incarcerated as a man. I situate prison rules in the historical context of dress regulation and prison evolution in the United States. The justifications—such as repression of homosexuality and group affiliation, prevention of attacks and escapes, and promotion of hygiene and rehabilitation—that prison officials offer for these rules raise normative and instrumental concerns. Nonetheless, courts frequently diminish individual and community interests in dress while deferring to prison regulations that lack complete or credible justifications. In furtherance of the goal of prison abolition, I propose an integrated approach for change through policy amendments, doctrinal shifts, and broader grassroots efforts for social transformation.

Toward a Bankruptcy Model for Nonclass Aggregate Litigation

Troy A. McKenzie

In recent years, aggregate litigation has moved in the direction of multidistrict litigation followed by mass settlement without certification of a class action—a form sometimes referred to as the “quasi-class action.” Driven by increased restrictions on class certification, particularly in mass tort cases, the rise of the quasi-class action has been controversial. In particular, critics object that it overempowers lawyers and devalues the consent of individual claimants in the name of achieving “closure” in litigation. This Article presents two claims.

First, the debate about the proper scope and form of aggregate litigation too frequently relies on the class action as the touchstone for legitimacy. References to the class action, however, are more often misleading than helpful. The basic assumptions behind the class action are different in degree and in kind from the reality of the quasi-class action. Overreliance on the class action as the conceptual framework for aggregation carries the significant risk of unintentionally shackling courts in their attempts to coordinate litigation. The very reason the quasi-class action emerged—the ossification of the class action model of litigation—suggests that courts and commentators should look for another reference model when assessing what is proper or improper in quasi-class actions.

Second, bankruptcy serves as a better model for judging when to use, and how to order, nonclass aggregation of mass tort litigation. The entirety of bankruptcy practice need not be imported to realize that bankruptcy may provide a useful lens for viewing aggregation more generally. That lens helps to clarify some of the most troubling concerns about the quasi-class action, such as the proper role of lawyers and the place of claimant consent. Bankruptcy serves as a superior reference model because it starts with an assumption that collective resolution is necessary but tem- pers the collective with individual and subgroup consent and with institutional structures to counterbalance the risk of excessive empowerment of lawyers or particular claimants.


Catalyzing National Judicial Capacity: The ICC’s First Crimes Against Humanity Outside Armed Conflict

Carey Shenkman

This Note joins two previously parallel tracks of scholarship regarding the International Criminal Court (ICC). The first track studies the ICC’s authority to prosecute certain crimes that do not have links to armed conflict. This power means that the ICC could have jurisdiction over repression of mass civil uprisings of the type occurring in the Arab Spring. The second branch of scholarship concerns “complementarity,” or the principle of ICC deference to national prosecutions, and how that practice pressures reform in national judiciaries. This Note argues, at their intersection, that the prosecution of cases outside armed conflict by the ICC further encourages national judicial reform by mobilizing civil society groups. I call this “capacity catalyzing.” Because states wish to retain control over national prosecutions that may infringe upon their sovereignty, especially in the prosecution of cases outside armed conflict, these cases create an incentive for states to avert ICC prosecution by trying the cases themselves. I demonstrate this through two recent ICC cases that occurred outside armed conflict. In Kenya in 2007, pro-government forces and criminal organizations perpetrated killings against civilians during post-election violence. In Libya in 2011, anti-government protests snowballed over two weeks before civil war began. The ICC only focused on these crimes in its initial warrant. When crimes against humanity were allegedly committed, armed conflict did not exist in either country. The ICC’s involvement in these cases has encouraged national judicial reform.

Sinking Islands? Formulating a Realistic Solution to Climate Change Displacement

Sheila C. McAnaney

Forced migration from climate change has been a hot topic in academia and the media for almost two decades, partly because it puts a human face on the otherwise science heavy issue of climate change. Academics have put forward a number of international solutions for resettling displaced persons and financially supporting them and their host countries. However, these proposals often fail to account for the nature and scope of likely migration and the political realities of the international community. This Note adds to the literature by developing a framework for assessing the responsiveness and viability of any proposed solution to gaps in protection for climate displaced persons. It develops five principles based on a realistic examination of the nature and scope of climate displacement and the political realities of the climate regime, and it then evaluates leading academic proposals against those principles to discover which elements are the most efficient and realistic. Finally, this Note concludes by suggesting one possible nontreaty proposal that meets all five principles and fills existing gaps in protection.

Safe Harbor Startups: Liability Rulemaking Under the DMCA

Brian Leary

This Note presents two arguments. First, the Digital Millennium Copyright Act’s (DMCA) liability safe harbors are inapposite for private cloud services. Private cloud services are increasingly common offerings where consumers upload content, such as music, movies, or books, to personal cloud storage space, then download or stream that content to a multitude of devices. Although granting safe harbor immunity from secondary liability for user infringement would further the DMCA’s policy to promote technological innovation, doing so would completely ignore the DMCA’s other policy—to protect copyright. Currently, the DMCA protects copyright through its notice-and-takedown procedures, but these provisions depend on the ability of copyright holders to monitor users’ public actions—an impossibility on private cloud services. Second, the private cloud services problem is symptomatic of a larger problem in the DMCA: Its regulatory-like detail and specificity undermine its application to new technologies. The solution to both problems is an administrative one: Delegate rulemaking power to narrowly define safe harbor qualification when new technologies, like private cloud services, are valuable but also both ripe for infringement and unaddressed by the DMCA.

Demsetz Underground: Busking Regulation and the Formation of Property Rights

James Graham Lake

The Metropolitan Transit Authority regulates busking—playing music or performing for tips in a public place—differently depending on the subway station. Some stations are reserved for members of a program called Music Under New York (MUNY), while at the others, anyone willing to pay the standard fare to enter the station is allowed to busk. As it happens, the distribution of MUNY and non- MUNY stations within the subway system follows an economic pattern. MUNY covers the stations where we should expect busking to impose the highest externality costs. This economic pattern of coverage provides the substantive basis for this Note: Because MUNY’s distribution is consistent with Harold Demsetz’s foundational theory about the economic development of private property rights, MUNY provides a window into a question left open by Demsetz and contested in subsequent literature—the question of how private property develops. This Note analyzes MUNY to make two contributions to the growing body of literature describing how property rights develop. First, observing the role that changing First Amendment doctrine played in MUNY’s formation, this Note argues that exogenous legal norms act as constraints on the mechanisms through which new property rights develop. Second, it argues that Demsetz’s theory should take account of the inertia built into property systems and the external shocks that help overcome this stasis.

Resolving Constitutional Uncertainty in Affirmative Action Through Constrained Constitutional Experimentation

Subash S. Iyer

There is significant uncertainty as to what types of remedial affirmative action programs in government contracting are constitutional. This uncertainty adversely affects policymakers, courts, government agencies, and businesses. This Note discusses how one remedial contracting affirmative action effort, the Department of Transportation (DOT) Disadvantaged Business Enterprise (DBE) Program, has a unique cooperative federalist structure that can help policymakers address this constitutional uncertainty. This structure, constrained constitutional experimentation, has three aspects: (1) an underlying context of constitutional uncertainty, (2) the use of the federal government’s Spending Power to create incentives for and constrain state action, and (3) the preservation of state governments’ flexibility to experiment. Because of this structure’s ability to transfer the results of experimentation from one state to others, the DBE program helps policymakers resolve the constitutional uncertainty surrounding remedial contracting affirmative action programs.

Discrimination During Traffic Stops: How an Economic Account Justifying Racial Profiling Falls Short

Sean Childers

The last decade has seen a noted increase in the amount of traffic-stop data available for researchers hoping to analyze racial profiling on America’s highways. A group of economic scholars—Knowles, Todd, and Persico—proposed a bright-line statistical test that asks whether different racial groups have the same hit rate, or to put it differently, are searches of individuals equally efficacious, regardless of their race? Accepting this conception of racial profiling as a minimum floor, I apply the test to a superior and newly-compiled data set of nine million Illinois traffic stops. The Illinois police fail the bright-line test and show signs of discrimination against Hispanic, Asian, and Black motorists. I then examine whether Seventh Circuit equal protection precedent would permit an Equal Protection claim based on that statistical disparity alone, concluding that additional evidence is needed to satisfy the discriminatory intent prong.