Many aspects of the relationship between the United States and its territories are inherently undemocratic. This Essay draws attention to one: the continued and systematic discrimination against United States territories in the appointment of judges to the federal courts of appeals. This failure not only contributes to the well-known diversity crisis within the federal judiciary but also to the stagnation in the development of the law of the territories as well as the persistent second-class treatment of the territories and their people under the United States Constitution as interpreted by the federal courts. Unlike larger and more difficult issues such as voting rights, territorial representation on the federal courts of appeals could be achieved through a simple amendment to 28 U.S.C. § 44(c) or by the president exercising his discretion to reject the unofficial custom of filling vacant circuit court judgeships with judges who hail from the same state as their prior occupants.
In A Theory of Stategraft, Bernadette Atuahene advances the concept of “stategraft” to describe situations in which “state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights.” This Essay delineates the ways in which criminal legal system fees and fines can be characterized as stategraft and explores the value of this concept for social movements. In many ways, the stategraft frame, with its focus on illegality, fits well with much of the litigation and advocacy against unconstitutional fees-and-fines practices that have occurred over the last decade. Exposing illegal practices such as the operation of debtors’ prisons laid the groundwork for a more fundamental critique of the use of the criminal legal system as a revenue generator for the state. The Essay cautions, however, against relying too heavily on illegality to describe what is wrong with fees-and-fines regimes in light of courts’ reluctance to impose robust legal protections against state practices that saddle those who encounter law enforcement with debt. Relying on an illegality critique may make it harder to attack entrenched practices that courts are inclined to bless as legal and obscure more fundamental dynamics of predation and regressive revenue redistribution. At this juncture, calling attention to these structural issues is likely to be more fruitful both as an organizing tactic and as a description of the harms posed by fees and fines.
Professor Bernadette Atuahene’s theoretical framework for “stategraft” denotes actions by which state agents transfer cash or property from the people to the state in violation of the law or basic human rights norms. Because illegality is central to stategraft, attention to it may push other forms of state predation—those that are legal or whose legality are uncertain—out of the realm of reform given the dearth of funding for legal advocacy and difficulties in marshalling lawmaker attention. This Essay suggests, however, that consideration of stategraft provides opportunities for advocates to push back against legal, or not yet illegal, predatory practices. It does so by looking to recent advocacy efforts related to two types of predatory behaviors outside the bounds of stategraft: the use of fines and fees, and civil forfeiture practices.
The Midas Touch: Atuahene’s “Stategraft” and Unregulated Artificial Intelligence: A Response to A Theory of Stategraft
Professor Bernadette Atuahene’s article, A Theory of Stategraft, develops the new theoretical conception of “stategraft.” Professor Atuahene notes that when state agents have engaged in practices of transferring property from persons to the state in violation of the state’s own laws or basic human rights, it sits at the nexus of illegal behavior and revenue-generating activity for the government. Although there are countless instances of “stategraft,” one particularly salient example is when the state uses artificial intelligence to illegally extract resources from people. This Essay will apply stategraft to an algorithm implemented in Michigan that falsely accused recipients of unemployment benefits of fraud and illegally garnished their paychecks and intercepted their IRS tax refunds.
Civil forfeiture is a mechanism by which law enforcement can seize and keep property purportedly connected to a crime absent the arrest, formal charging, or even conviction of the property owner. Forfeiture laws also allow law enforcement to keep a portion, and sometimes all, of the seized property for agency use and, in some jurisdictions, even for the salaries and benefits of law enforcement personnel directly. In the past several decades, forfeiture laws have distorted law enforcement priorities by shifting the focus away from other activities and toward revenue generation. Civil forfeiture illustrates Professor Atuahene’s theory of stategraft: state agents transferring property from residents “to the state in violation of the state’s own laws or basic human rights,” often during times of budgetary austerity. But this Essay identifies important elements of forfeiture that do not comport with the theory. It suggests ways in which the conceptualization of stategraft may be expanded to encompass laws, regulations, and systems that legally, although arguably unjustly, allow or encourage state actors to exploit their fellow residents for the benefit of the bureaucrat’s budget. The Essay concludes with recommendations for reform of civil forfeiture laws and stategraft more generally.
In this Essay, we re-examine our 2022 book, Menstruation Matters: Challenging the Law’s Silence on Periods, through multiple related lenses, including the human rights, sustainability, and workplace issues emphasized by our three reviewers; the COVID-19 pandemic; and the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. All of these perspectives converge on the inherent dignity and autonomy interests in being able to manage one’s own body. Menstruation and related conditions like breastfeeding, pregnancy, and menopause should not be sources of shame or stigma. Nor should they be vectors of formal control by the government or de facto exclusion from school, work, or any aspect of public life. Yet the Supreme Court’s overturning of Roe v. Wade means that reproduction-associated bodily processes likely will be the focus of legal battles for years to come. As we continue to emphasize the many ways that menstruation matters in life and law, we strive for a legal future that recognizes the full humanity of all people and safeguards our equal rights.
In February 2023, Spain became the first European country to guarantee “menstrual leave” for workers, joining several countries, mostly in East Asia, that have long done so. It has also become increasingly common for companies to offer paid time off to menstruators as a discretionary benefit. Reports on these developments are almost always accompanied by criticism from self-identified feminists voicing concern that the policies will spur discrimination against women or reinforce stereotypes about menstruators as incapable workers. This echoes earlier arguments over maternity leave.
In their groundbreaking book, Menstruation Matters, Bridget Crawford and Emily Waldman expose myriad ways in which workplaces can be inhospitable to menstruators, and they offer an extremely helpful introduction to the debate over menstrual leave. This Essay builds on their analysis to take a deeper dive into the issue. It argues that there are alternatives to leave that could address many of these problems without triggering the same concerns of backlash. These include effective enforcement of existing laws and regulations relating to restroom access, break time, and workplace accommodations for various health needs. Additionally, employers can provide free menstrual products in workplace restrooms to allows workers to handle periods with dignity—even when they start unexpectedly—and help destigmatize menstruation.
Even if these practices become routine, some menstruators might need to miss work when experiencing severe menstrual symptoms. The Essay suggests that rather than seeking menstrual-specific leave, advocates might join forces with the burgeoning campaign to guarantee adequate paid sick days for all workers. Menstruation is not an illness, but most such laws are written broadly enough to meet menstruators’ needs. This universal approach, designed to support a broader swath of workers, would probably be easier to pass politically, and it would be far less likely to result in workplace discrimination against menstruators.
It is possible to menstruate for forty-six years without ever considering menstrual politics as a compelling intersectional sphere that embraces gender, race, class, health, and environmental concerns. It is not possible, however, to read Menstruation Matters: Challenging the Law’s Silence on Periods and fail to grasp the scope of the policy problems and opportunities that menstruation presents.
This Review presents one lawyer-activist-reader’s perspective on three distinct themes in the book: menstruation and education, the health and environmental aspects of menstruation, and menstrual politics as a site of intense semantic contestation. This grab sample of Menstruation Matters reflects my own areas of experience and expertise. It also demonstrates the book authors’ impressive range as they explore well beyond their core disciplines of tax and constitutional law to present a lucid and comprehensive picture of the diverse issues that periods implicate.
I share with the authors a hope that the ever-growing movement for menstrual equity provides proof of concept for an expansive vision of human dignity and flourishing that benefits all of its constituent movements.
In the 2010s, the United States entered a pedestrian safety crisis that is unique among wealthy nations. Deaths of people on foot surged more than 46% that decade, outpacing the increase in all other traffic deaths by nine to one. The early 2020s have seen an intensification of this trend. These fatalities magnify racial disparities, placing Black pedestrians at a two-thirds higher risk of being killed than their white counterparts. While the pedestrian safety crisis has many causes, there is growing evidence that the enlargement of the American vehicle has played a key role. Auto companies earn higher profit margins on large vehicles, and consumers prefer their greater creature comforts. But the size, height, and weight necessary for those comforts has been shown to make these vehicles far deadlier for those who have the misfortune of being struck by them. Carmakers do not disclose these risks to the car-buying public—but even if they did, individual consumers lack appropriate incentives to internalize the social costs of the vehicles they buy. Like pollution, this negative externality presents a classic case for regulation. Yet America’s vehicle safety regulator (the National Highway Transportation Safety Administration, or NHTSA), conceived in the wake of the Ralph Nader consumer revolution of the 1960s, considers the safety of pedestrians—who are third parties rather than consumers—almost completely alien to its mission.
This Essay presents a different model, based on NHTSA’s own statutory mandate to protect “the public” as a whole from risks posed by motor vehicles. It argues that pedestrians are, quintessentially, a group whose well-being vehicle safety regulators should prioritize—even though when acting as pedestrians they are not consumers of the regulated product. Pedestrians are maximally exposed to dangerous vehicles, and by definition they benefit from neither vehicle comforts nor most occupant-focused safety features. They may even be endangered by some of them. NHTSA should expressly incorporate the welfare of pedestrians and other non-occupants into its mission. To that end, this Essay develops four policy actions NHTSA should undertake as part of a policy update it launched in 2022: include pedestrian safety in its marquee safety evaluation program; regulate the design of vehicles to protect people outside of them; use technology to protect pedestrians; and update its safety tests so they are more representative of common fatal pedestrian crash victims and scenarios.
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.