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A mid-century net zero target creates a challenge for reducing the emissions of emissions-intensive, trade-exposed sectors with high cost mitigation options. These sectors include aluminium, cement, chemicals, iron and steel, lime, pulp and paper and petroleum refining. Available studies agree that decarbonization of these sectors is possible by mid-century if more ambitious policies are implemented soon. Existing carbon pricing policies have had limited impact on the emissions of these sectors because their marginal abatement costs almost always exceed the tax rate or allowance price. But emissions trading systems with free allowance allocations to emissions-intensive, trade-exposed sectors have minimized the adverse economic impacts and associated leakage. Internationally coordinated policies are unlikely, so implementing more ambitious policies creates a risk of leakage. This paper presents policy packages a country can implement to accelerate emission reduction by these sectors with minimal risk of leakage. To comply with international trade law the policy packages differ for producers whose goods compete with imports in the domestic market and producers whose goods are exported. Carbon pricing is a critical component of each package due its ability to minimize the risk of adverse economic impacts on domestic industry, support innovation and generate revenue. The revenue can be used to assist groups adversely impacted by the domestic price and production changes due to carbon pricing and to build public support for the policies.

Abstract: Scholars and advocates are at odds about how to achieve higher levels of child safety and permanency. Calls for change include the recent upEND focus on eradication of child welfare services to a radical refocusing of the present system towards prevention/early intervention. To clarify the implications of reform over abolition, we seek to portray a future in which the abolition of child welfare has occurred, in juxtaposition to maintaining four core elements of established child maltreatment programmes around the world: (1) receiving and responding to community signals about the risk to children; (2) assessment of need coupled with a proportionate response; (3) rights protections to ensure fairness when placement outside the family is required; and (4) procedures for accountability and quality improvement. For each of these functions, we outline abolitionist advocates' positions and implications for children and parents. Across these elements, we delineate how assigning these responsibilities to communities, as suggested by upEND, would likely (1) exaggerate racial and economic inequities and (2) create structural barriers that would increase harm to children. We suggest several evidence‐informed enhancements to practice, research and policy that would mitigate these inequities while also increasing safety and permanency.

The.tort.system.is.commonly.used.in.environmental. policy. to. drive. costs. to. the. point. where. a. party. is. forced. to. forego—or. adopt—practices. desired. by. the.opposing.party .This.Article.demonstrates.that.it.is.possible.for.lawsuits. to.ignite.a.market.for.an.innovative.energy.technology.that. otherwise.would.be.too.costly.to.implement ..For.example,. early.adopters.of.a.technology.might.be.able.to.create.con- ditions. that. make. that. technology. feasible. because. they. are.motivated.to.settle.a.nuisance.lawsuit ..Lessons.learned. from. the. implementation. of. such. technology. can. yield. engineering.improvements.that.would.decrease.the.capital. or.operating.costs.of.the.technology ..In.other.words,.a.nui- sance.lawsuit.can.serve.as.the.mechanism.to.make.a.tech- nology.economically.feasible.and.commercially.available .This. Article. focuses. on. anaerobic. digestion. (AD):. a. technology.that.converts.biomass.into.methane.that.can.be. captured.and.used.as.biogas,.or.that.can.be.converted.into. electricity. through. a. generator .. The. biogas. and. electricity. can.be.used.at.the.facility.where.the.biomass.is.collected,. or. the. electricity. could. be. sold. to. the. grid. if. net. meter- ing.policies.are.available .1.In.addition.to.energy.generation. and. greenhouse. gas. reduction,. AD. also. reduces. odor— an. important. consideration. for. agricultural. operations,. including. swine. and. dairy. facilities .. This. Article. presents. the. author’s. original. research. illustrating. that. mitigating. imminent. nuisance. lawsuits. potentially. can. make. AD. technology.economically.feasible.in.the.western.part.of.the. United.States .Implementation.of.AD.technology.for.pur- poses.of.lawsuit.mitigation.has.already.led.to.improvements. in. engineering. innovation. that. might. make. the. technol- ogy.more.widely.available.in.the.western.United.States

Innovation in physical urban infrastructure is a vital component of citymaking in an era of sea level rise, climate change, and rapid urbanization.Venice pioneered an urban and environmental innovation model in the 14thand 15th century, successfully negotiating the cities complex geography andthe sociotechnical processes that characterized Renaissance urbanism. Areview of early inventor rights issued in the city suggests that the process ofpatent innovation facilitated urbanization of the Venetian lagoon throughdevelopment of advanced drainage, dredge, irrigation, and reclamation infrastructure,essential to the city’s survival. In addition to granting patentsfor new inventions, the Venetian government established expert review forproposed inventions, supported prototyping and testing for untried technologies,and used patent rights to attract experts with novel inventionsfrom across Italy and Europe. These processes, in addition to the extensivedossier of patents issued in Venice, substantiate the primacy of innovationin the process of urbanization and revel an urban innovation model. Patentlaw later spread along Venetian trade routes through Europe, where theywere also employed in economic modernization, and the construction ofurban and regional infrastructure. Interestingly, similar process can laterbe observed throughout Europe and the United States as patent rights wereconstitutionalized.

Often, we ask: how can regulation mitigate risk? What might happen if instead we ask: what does regulation tell us about socially situated action? This article poses a thought experiment along these lines. The emerging conversation about regulation and the risks of mobile financial services has been relatively silent on a ubiquitous set of things people do with cash and coin not limited to the strictly economic functions of these media. Adding mobile into the mix of people's existing; highly complex monetary practices has the potential to create new risks -- but also new opportunities for product design and smarter regulation. This paper describes the social uses of mobile phones and cash from different cultural contexts, including proscriptions regarding the disclosure of certain transactions, and multi-person sharing of money and mobiles. It then reflects on how we might understand regulation as an account of people's practices and experiences, an account we might set alongside other forms of data on use cases for mobile and money. It argues that the risks identified by the regulators, rather than hindering innovation or frightening off developers, might instead inspire user-oriented solutions for mobile money, and for mobile money as part of, not a replacement for, the user's world of diverse social currencies.

When those accused of being high-level perpetrators of human rights abuse die before publicly yielding their secrets in legal and archival arenas, victims may simultaneously express relief about the perpetrator’s demise and grief that, along with it, possible crucial information about the past is lost forever. Although the accused do not usually directly admit their actions and the teasing out of what actually happened is dependent upon the complex processes of cross-examination of their testimony and of records and other forms of evidence, victims project such moments of revelation onto the public act of holding accused perpetrators to account. In their deaths, the accused become forever from-now-on unavailable and thus unassailable evidence – in essence; they are transformed into imagined documents that can never be cross-examined. In this construction, the would-be testimony of perpetrators is given epistemological validity over that of victims, offering up the false and unfulfillable promise of establishing a singular truth. Complicating this scenario, however, is the increasingly open-ended hope offered to victims, judicial processes and historians alike by the application of new forensic methods, for example, in the examination of gravesides and humanremains, and by satellite footage, that are generating additional categories ofevidence. Using the juridical and archival legacies of the Khmer Rouge in Cambodia and the Yugoslav Wars as case studies, this article argues that when perpetrators die before giving legal testimony, survivors and victims’ families construct them as unavailable documents with imaginary agency to settle competing versions of history. Such imagined documents enter into a complex landscape of human rights archives that has heretofore been exclusively focused on tangible evidence. First, this articleframes the case of Khmer Rouge leader Ieng Sary, charged with crimes against humanity and war crimes, who died before giving his testimony in a hybrid tribunal. In the face of diverse archival documentary evidence capable of presenting a more complete and complex picture of atrocities, it contemplates why survivors and victims’ family members placed high hopes on his potential testimony, essentially constructing him as a now-dead living document. Second, it explores a parallel case, that of the death of Slobodan Milošević while being tried by the International Criminal Tribunal for the Former Yugoslavia (ICTY), and argues that the notion of a dead perpetrator as imagined document has less sway when the public has theopportunity to hear the perpetrator defend himself, regardless of the perpetrator’s own admission (or denial) of culpability. Third, it proposes the notion of imaginary documents. It argues that such imaginary documents challenge dominant conceptions of the evidentiary qualities of tangible records and the archival legacies of trauma by insisting on a more dynamic and holistic view of records that takes the affect of survivors and victims’ family members into account.

Abstract: US immigration law increasingly excludes many immigrants materially and symbolically from vital safety-net resources. Existing scholarship has emphasized the public charge rule as a key mechanism for enacting these exclusionary trends, but less is known about how recent public charge uncertainty has shaped how noncitizens and healthcare workers negotiate safety-net resources. Drawing on ethnographic observations and interviews with 80 safety-net workers and patients in three US states from 2015 to 2020, I argue that intensifying anti-immigrant rhetoric surrounding public charge has extended a sense of surveillance into clinical spaces in previously unexamined ways. Drawing on theories of medical legal violence, system avoidance, and legal estrangement, I demonstrate how these dynamics undermined immigrants' health chances and compromised clinic workers' efforts to facilitate care. I also reveal how participants responded to this insinuation of legal violence in healthcare spaces by promoting situational trust in specific procedures and institutions.

In the past two decades, police forces have come to rely on algorithm-based technologies for investigative leads. Several of these technologies are unreliable. They are prone to error, misidentifying suspects, and crimes. When relied upon, they lead to false arrests and unnecessary stop-and-frisks. Yet, there is no coercive mechanism, either regulatory or judicial, that meaningfully governs the use of these algorithmic technologies in law enforcement. As a result, law enforcement agencies are free to disregard potential errors and deploy emerging technologies against communities with little recourse. This Article looks closely at three technologies--ShotSpotter gunshot detection, facial recognition technology, and rapid DNA machines--to illuminate reliability issues common to privately-held algorithmic technologies and exacerbated by police misuse. Law enforcement agencies fail to screen technologies before using them to support individualized suspicion for searches and seizures. Thus, the police end up targeting criminal defendants based on unreliable information. But the Fourth Amendment does not meaningfully provide defendants with an avenue to challenge the reliability of technologies used to develop probable cause and reasonable suspicion. Extrajudicial regulation is needed to ensure that the technologies used by law enforcement are reliable. If law enforcement agencies continue to deploy unreliable technologies, courts should suppress evidence stemming from their use., CONTENTS I. INTRODUCTION II. RELIABILITY AS A VALUE IN ITSELF A. Defining Reliability B. Reliability and the Fourth Amendment III. ALGORITHMIC TECHNOLOGIES: UNRELIABLE AND IMPACTFUL A. ShotSpotter 1. How it [...]

'Of this I am certain: If we prepare ourselves so that a terrible attack--although it might hurt us--could not destroy us, then such an attack will never come.'--Edward Teller, the 'Father of the Hydrogen Bomb,' in an interview with Allen Brown of This Week Magazine in 1957. Bad actors have already used or may soon use AI to disrupt critical infrastructure,* (1) influence elections, (2) and upend economies. (3) Those most concerned about the risks posed by AI argue that it is a matter of when and not if state governments will have to respond to threatened or realized acts of AI aggression. Though a litany of scholars have examined the powers governors may use in emergency situations, (4) less attention has been paid to the role of state legislatures in responding to destabilizing events. Scholars have justified their focus on governors for practical reasons--the executive branch of state governments has been deemed the 'the center of governmental response[s]' to public emergencies. (5) Two trends caution against perpetuating neglect of state legislatures. First, the legal and social bases for governors to take sweeping action in response to emergencies eroded in many states during COVID-19 (6) In turn, many state legislatures, by law, by popular support, or both, have amassed more authority to respond in worst-case scenarios. (7) Second, the likelihood of states being thrown into disarray will only increase as AI evolves and spreads; (8) thus, warranting a closer analysis of what powers state legislatures may exercise to restore normalcy. Thirty-five state constitutions contain variants of a template 'Continuity of Government' (CoG) provision promulgated by the federal government at the height of the Cold War. (9) What events may trigger these provisions, as well as what powers they afford to state legislatures, has evaded judicial scrutiny as a result of state legislatures rarely invoking the relevant provision. (10) It follows that the scholarly analysis of how best to interpret these important provisions should occur in the relative tranquility of the present rather than at the height of a calamity. This preemptive analysis may improve the ability of state legislatures to respond to disorder by clarifying the likely scope and duration of their powers and, ideally, by spurring amendments to clarify the provisions in advance of any such event. This paper serves as one (and, likely, the first) entry in an inquiry that merits immediate and robust scholarly attention. Relying on the framework set forth by the New Haven School of Jurisprudence, this paper resolves one of the most consequential ambiguities contained in CoG provisions. This framework deserves special consideration given its inclusion of myriad disciplines and its characterization as an 'explicitly policy-oriented jurisprudence.' (11) Scholars from across the legal profession have a role in contributing to this inquiry. The incorporation of AI into legal practice imposes a responsibility on scholars to anticipate how the technology may require new doctrines, laws, and methods of interpretation. Though this paper focuses on the continuation of state governments in the wake of an AI emergency, related inquiries such as how to rethink contract law, property law, and the like upon such an emergency demand more scholarly attention. The exploration of those topics can, in turn, inform what sorts of powers state legislatures may need to exercise and for how long., CONTENTS I. INTRODUCTION II. SUMMARY OF COG A. Widespread Fear of Nuclear Attack Causing Mass Casualties and Mass Destruction B. The Impetus for and Intended Purpose of CoG Provisions C. [...]

A patent is an exclusive right granted for an invention to the inventor. However, when it comes to life-sustaining products, these exclusive rights have a negative impact on people's lives. The government has tried to develop initiatives, such as the Hatch-Waxman Act, to compensate and speed up the entry of affordable medicines into the market. But when one patent addressing one medical condition (indication) blocks the entry of the generic, the use of skinny labels makes it possible for the generic players to carve out the label and enter the market only with indications that are off-patent. This helps bring these unaffordable medical products within reach of the common person who could not otherwise afford them. This note will examine how the generic players navigate the drug approval system, the strategies of the innovators to ward off competition, and the public policy surrounding the availability of affordable medical products. It will also discuss the impact and implications of skinny labels on the market entry of affordable life-sustaining products and the landmark case that is changing the scenario altogether. Finally, this note will propose possible alternative methods to increase the affordability and availability of life-sustaining products by making it a win-win situation for innovators, generics, and the public., CONTENTS I. INTRODUCTION II. HISTORICAL AND LEGAL OVERVIEW OF THE PROBLEM A. U. S. Pharmaceutical Industry and Patents B. Patent Linkage C. Skinny Label (Carve-Outs III. OVERVIEW OF THE CURRENT [...]

Bhasin v Hrynew has many dimensions and potentially affects almost every aspect of Anglo-Canadian contract law. This article is limited to one aspect only: the duty of honest performance ('DHP'). My article attempts to show that the objective theory can provide a solid foundation and a different thinking framework for understanding and developing the DHP. If I am right, the DHP may be placed on a sound footing, independently of the organizing principle of good faith. Section I of this article traces the duty's development from Bhasin to Callow. Section II argues that under the objective theory, reasonable expectations of the parties are symmetrical, because reasonableness, as a transactional term, merely represents the world shared between the parties. Section III discusses the DHP under the framework of symmetry. Specifically, I discuss the possible developments of the knowledge requirement, the inclusive and exclusive bases under the DHP, the interpretations of equivocation and silence, why the DHP necessarily exists, and why breach of the DHP should be reliance-based. L'affaire Bhasin c. Hrynew comporte de nombreuses dimensions et a de potentielles r percussions sur presque tous les aspects du droit des contrats anglo-canadien. Le pr sent article se limite un seul aspect : le devoir d'ex cution honn te (<< DEH >>). Mon article tente de montrer que la th orie objective peut fournir une base solide et un cadre de pens e diff rent pour comprendre et d velopper le DEH. Si j'ai raison, le DEH peut tre plac sur une base solide, ind pendamment du principe organisateur de la bonne foi. La section I du pr sent article retrace l' volution de l'obligation nonc e dans l'arr t Bhasin l'arr t Callow. La section Il soutient qu'en vertu de la th orie objective, les attentes raisonnables des parties sont sym triques, parce que le caract re raisonnable, en tant que terme transactionnel, repr sente simplement le monde partag entre les parties. La section III examine le DEH dans le cadre de la sym trie. Plus pr cis ment, je discute des d veloppements possibles de l'exigence de connaissance, des bases inclusives et exclusives du DEH, des interpr tations de l' quivoque et du silence, des raisons pour lesquelles le DEH existe n cessairement, et des raisons pour lesquelles la violation du DEH devrait tre fond e sur la confiance., Introduction I. The DHP from Bhasin to Callow 1. The birth of the duty in Bhasin 2. The unparalleled sequel: Callow a. The factual matrix b. The explicit and implied [...]

...to break the rules wisely, you have to know the rules well. -Le Guin, Steering the Craft I finished my doctorate in June of 2019. Most of my waking hours [...]

This paper highlights the structural barriers to voting rights that Japanese-Canadians in BC faced in the early 20th century. It documents Tomekichi Homma's challenge of provincial legislation which prevented the Japanese from voting in local elections. His fight went to the Judicial Committee of the Privy Council, then the highest court of appeal in Canada. While Homma challenged the law because it denied voting rights based on racial grounds, the courts made little to no reference to race or ethnicity in hearing the issue; their focus was on questions of constitutionality and the division of powers. The Privy Council employed questionable legal reasoning in dismissing Homma's appeal, and departed from a recent precedent of theirs, Union Colliery, which promoted the employment rights of Chinese-Canadians in BC. This paper attempts to understand and explain why Homma was not successful before the Privy Council in the face of the Union Colliery decision. Cet article met en lumi re les obstacles structurels au droit de vote auxquels les Canadiens d'origine japonaise ont t confront s en Colombie-Britannique au d but du XXe si cle. Il documente la contestation par Tomekichi Homma de la l gislation provinciale qui emp chait les Japonais de voter aux lections locales. Son combat a t port devant le comit judiciaire du Conseil priv , qui tait alors la plus haute cour d'appel du Canada. Bien que Homma ait contest la loi parce qu'elle refusait le droit de vote pour des motifs raciaux, les tribunaux n'ont gu re fait r f rence la race ou l'appartenance ethnique lors de l'examen de la question; ils se sont concentr s sur les questions de constitutionnalit et de r partition des pouvoirs. Le Conseil priv a utilis un raisonnement juridique discutable pour rejeter l'appel de Homma et s'est cart d'un de ses pr c dents r cents, Union Colliery, qui a promu les droits l'emploi des Sino-Canadiens en Colombie-Britannique. Cet article tente de comprendre et d'expliquer pourquoi Homma n'a pas eu gain de cause devant le Conseil priv , compte tenu de la d cision de Union Colliery., Introduction I. Homma through the courts II. Union Colliery v Bryden III. Homma before the Privy Council IV. Explaining the Privy Council's departure from Union Colliery 1. Features and limitations [...]

In his latest research paper the author explores the extent or degree to which the Nova Scotia Small Claims Court achieves its declared purpose of providing the citizens of the province with what can accurately be described as a 'People's Court,' that is, a legal agency that would allow ordinary citizens to pursue their legal claims expeditiously and at a reasonable cost with a process that involved lawyers/adjudicators rather than judges. After a review and analysis of several thousand decisions by Nova Scotia Adjudicators/lawyers, the author concluded that the creators of the court had been largely successful and its full vision as a 'People's Court' had been substantially achieved, although as the reviewers cautioned, it is still a work in progress. The author further suggests that now, more than ever, with our increasingly litigious society pressing its' perceived legal claims, the Nova Scotia Small Claims Court is a Nova Scotia legal institution that needs and deserves to be supported by the Nova Scotia government. Dans son dernier rapport de recherche, l'auteur tudie dans quelle mesure la Cour des petites cr ances de la Nouvelle- cosse atteint son objectif d clar de fournir aux citoyens de la province ce que l'on peut d crire avec justesse comme un << tribunal populaire >>, c'est- -dire un organisme juridique qui permettrait aux citoyens ordinaires de faire valoir leurs revendications juridiques rapidement et un co t raisonnable dans le cadre d'une proc dure faisant intervenir des avocats/adjudicateurs plut t que des juges. Apr s avoir examin et analys plusieurs milliers de d cisions rendues par des juristes/adjudicateurs de la Nouvelle- cosse, l'auteur a conclu que les instigateurs du tribunal avaient largement r ussi et que leur vision d'un << tribunal populaire >> s' tait largement concr tis e, m me si, comme l'ont soulign les examinateurs, il s'agit encore d'un travail en cours. L'auteur sugg re en outre qu'aujourd'hui, plus que jamais, avec notre soci t de plus en plus proc duri re qui insiste sur les revendications juridiques qu'elle per oit, la Cour des petites cr ances de la Nouvelle- cosse est une institution juridique de la province qui doit et m rite d' tre soutenue par le gouvernement de la Nouvelle- cosse., Introduction I. Jurisdiction 1. Changes to the jurisdiction (expanded) II. The purpose of this study III. Previous studies on the Court 1. The Nova Scotia Court Structure Task Force (1991) [...]

As legal restrictions loosen, psychedelic-assisted therapies are advancing at an unprecedented pace and scope in Canada and the US. Presented as a miracle cure for post-traumatic stress, depression, and other psychological disorders, psychedelics are being touted to treat post-pandemic mental health crises. In this paper, drawing on Science and Technology Studies, I ethnographically trace the ongoing process and practices involved in transforming illegal psychedelics into a regulated medicine in Canada, paying particular attention to regulatory pathways and the development of networks involved in psychedelic advocacy. Using these pathways as a methodological 'sampling device,' I map the main actors, their mutual relationships, and the resources mobilized to advocate the regulatory goals. By tracing this regulatory networking, I also demonstrate how domination and professionalization are being enacted alongside regulatory advocacy, raising questions about future equitable access to psychedelic-assisted therapies. Alors que les restrictions l gales s'assouplissent, les th rapies assist es par les psych d liques progressent un rythme et avec une ampleur sans pr c dent au Canada et aux tats-Unis. Pr sent s comme un rem de miracle contre le stress post-traumatique, la d pression et d'autres troubles psychologiques, les psych d liques sont vant s pour traiter les crises de sant mentale postpand miques. Dans cet article, qui s'inspire des tudes sur la science et la technologie, je retrace de mani re ethnographique le processus en cours et les pratiques impliqu es dans la transformation des psych d liques ill gaux en m dicaments r glement s au Canada, en accordant une attention particuli re aux voies r glementaires et au d veloppement des r seaux impliqu s dans la d fense des int r ts des psych d liques. En utilisant ces voies comme un << dispositif d' chantillonnage >> m thodologique, je cartographie les principaux acteurs, leurs relations mutuelles et les ressources mobilis es pour d fendre les objectifs r glementaires. En retra ant ce r seau r glementaire, je d montre galement comment la domination et la professionnalisation sont mises en oeuvre parall lement la d fense de la r glementation, ce qui soul ve des questions quant l'acc s quitable futur aux th rapies assist es par les psych d liques., Introduction I. Psychedelics' regulatory past: The nexus of science, medicine, and law 1. The emergence of psychedelic psychiatry in Canada 2. Towards the prohibition of psychedelics and the 'War on [...]

'I really did try, I tried hard to be a man, to be a good man, and I see how I failed at that. I am at best a bad [...]

Of all commercial renewable generation technologies, offshore wind is the costliest, far more so than solar photovoltaics and onshore wind. The newest incarnation of offshore wind-floating turbines that can be [...]

In the United States, an administrative agency called the Copyright Royalty Board (CRB) sets rates for various compulsory licenses. Under those licenses, qualified parties can pay a government-set fee and [...]

Terry Rainwaters owns 136 acres of rural land in northwest Tennessee. He lives on the property with his son, rents a second house on the property to long-term tenants, and [...]

Three months before the end of his presidency, Donald Trump quietly issued Executive Order 13957, allowing the conversion of some federal civil service jobs to excepted service under a new [...]

Economics in America: An Immigrant Economist Explores the Land of Inequality By Angus Deaton 271 pp.; Princeton University Press, 2023 Economist Angus Deaton was born and educated in Britain and [...]

Consumer and industrial equipment have become increasingly sophisticated over the past decade. As machines evolve alongside the technological revolution, they become increasingly dependent on complex computing software and uniquely manufactured [...]

Debit card interchange fees are paid by merchants to issuing banks for processing debit card transactions. The fees have been a subject of controversy and regulation in the United States [...]

In the 1970s, the Supreme Court prohibited the then-common practice of incarcerating criminal defendants because they lacked the money to immediately pay of their fines and fees. The Court suggested that states could instead put defendants on installment payment plans. As this Article shows, this suggestion came against a backdrop of impressive success stories about installment fines--including earlier experiments in which selected defendants had reliably paid of modest fines through carefully calibrated payment plans. Ye t as this Article also shows, installment fines practices of today differ significantly from those early experiments, as lawmakers have increased fine amounts, added on fees, surcharges, and restitution, and penalized nonpayment through additional costs and other sanctions. This has turned installment fines into tools of long-term oppression. Further, the early experiments were only ever limited solutions that left behind people in the most precarious financial circumstances, widened the government's net around only those of limited means, and raised the risk that crime policy would be driven by revenue generation aims rather than justice. Those problems continue today. For all too many, installment fines are unafordable, endless, and arbitrarily administered--and applied instead of better and more equitable solutions. We close the Article by arguing that the present-day uses of installment fines merit both constitutional challenge and policy reform., INTRODUCTION 990 I. THE ORIGINS OF INSTALLMENT FINES 999 A. The Uptake of Installment Fines During the Progressive Era 1000 1. International Efforts to Curtail Imprisonment for Failure to Pay [...]

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs' lawyers have tried challenging class action-banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court's ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit--until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area attack on the arbitral edifice may be fruitful. More consequentially, in my view, the Supreme Court has cast substantial doubt on the 'liberal federal policy favoring arbitration' upon which contemporary FAA jurisprudence rests. This is big news, suggesting that all judge-made, arbitration-specific rules created in the service of a supposed policy favoring arbitration are ripe for reexamination. One consequence, I show, is that the FAA must now be understood to exempt the contracts of all workers engaged in interstate commerce. Meanwhile, entrepreneurial plaintiffs' firms have sought to force corporate defendants to make good on their contractual promises to bear the cost of arbitrating large numbers of nominally individual claims. By marketing broadly to would-be claimants via social media and then financing the claimants' portion of arbitral filing fees, these firms have filed thousands of simultaneous claims, forcing defendants to either settle or spend tens of millions of dollars on arbitral fees alone. At present, companies are groping for contractual tweaks to foreclose the risk of mass arbitration. But I expect those efforts will be thwarted by state unconscionability law in many states. And I also expect that companies will increasingly drop their arbitration clauses altogether and seek to implement standalone class action-waiver clauses, removing any pretense that the defense community was ever interested in arbitration, as opposed to class-action bans. But here, too, I think state unconscionability law will bring us back full circle to the state-by-state map that existed prior to Concepcion. In short, there are reasons to believe that the hegemony of class-banning arbitration is unraveling before our very eyes., INTRODUCTION 1064 I. IN CONGRESS 1069 A. Early Jurisprudence Under the EFAA 1074 B. Charting a Legislative Course Forward 1077 II. IN THE COURTS 1081 A. FAA [section] 1: New [...]

Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on 'outcome reasons,'justifications that rely on the theorist's beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called 'canonical cases' argument, which evaluates positions in normative constitutional theory on the basis of their counterfactual implications for a handful of prior decisions of the Supreme Court. Among the many problems with 'outcome reductionism' (exclusive reliance on outcome reasons) is the reality that none of the fundamental and feasible options for normative constitutional theory can guarantee outcomes that that most citizens would find acceptable, much less optimal. Living constitutionalism produces constitutional outcomes that reflect the moral values and political ideology of Supreme Court Justices, but over the long run there is no guarantee that the Justices will do what any individual believes is required by justice. Decades ago, the Justices established a constitutional right to abortion, but recently they reversed course. Dramatic changes in constitutional law are inevitable given that the Justices are selected by the President and Congress, institutions that will change their political makeup in unpredictable ways over time. Outcome reductionism is not a sensible method for normative constitutional theory, but there is a better approach. Outcome reasons can be supplemented by process reasons such as legitimacy, the rule of law, and institutional capacities. The way forward for constitutional theory involves a holistic assessment of both outcome reasons and process reasons via the method of reflective equilibrium. The way forward requires a frank acknowledgement of the consequences of deep and persistent disagreement about fundamental questions concerning justice and the common good. And therefore, the way forward will require an acknowledgement that a legitimate constitutional order will require compromise., TNTRODUCTION 915 I. OUTCOME UNCERTAINTY AND THE THREE FUNDAMENTAL AND FEASIBLE OPTIONS 921 II. OUTCOME REASONS AND PROCESS REASONS IN CONSTITUTIONAL THEORY 931 A. The Distinction Between Outcome Reasons and [...]

The Supreme Court has not addressed the relationship between searches by school administrators and a student's Fourth Amendment rights in over two decades. Since then, remote learning and other advances in educational technology have changed the meaning of the 'school environment.' In a recent federal district court case in Ohio, the court held that a public university's remote examination policy, which required a student to conduct a scan of her own bedroom before beginning a remote exam, violated the student's Fourth Amendment rights. This Comment argues that the previous school search Supreme Court cases offer poor tests for this new generation of school searches, and it propose a new framework based on other seminal Fourth Amendment cases in analogous contexts., INTRODUCTION 1156 I. SCHOOL SEARCHES, THE FOURTH AMENDMENT, AND THE PATH TO OGLETREE 1161 II. THE OGLETREE CASE 1165 III. RETURNING TO CAMARA AND THE SPECTER OF CONSENT 1170 A. [...]

This Article tells an untold history of the American title registry, a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on the registry's role in catalyzing property markets, while mostly overlooking the main sources of this property in the American colonies: expropriated lands and enslaved people. This analysis centers the registry's work of organizing and 'proving' land claims that were not only individual but collective, to affirm encroachments on tribal nations' lands. In this way, registries helped scaffold the colonies' tenuous but growing political and jurisdictional power. The specific history of the U.S. title registry illustrates a crucial dynamic between property and sovereignty. In America, property and property institutions did not issue from sovereigns with established authority to govern a territory, as in the understanding drawn from European legal traditions. Rather, property institutions, exemplified by the title registry, preceded and ushered in colonial and U.S. sovereign title to Native homelands. This Article presents new questions about how the legal infrastructure of property furthered European colonists' conquest and how this progression of conquest on the ground produced the national jurisdiction and real-estate market of today. Leveraging established scholarship on the colonies and deploying original research on county creation, it shows that in the haphazard history culminating in the American title registry, colonists borrowed the English legal forms of the registry and county and remade them into local tools of colonial territorial expansion. The registry and county became key local governmental forms that drew settlers into Native nations' territories and encouraged them to claim lands by reassuring those settlers that their claims would become real property. The time map of county creation--not of the formation of territories, nor the admission of states, nor the conclusion of treaties--most accurately tracks where the United States grew its jurisdictional power, and when. The United States created counties and registries between its plans to invade and its actual ability to govern lands, before the naming of transitional territories, and often even before obtaining Native cessions to the lands by treaty. In the history of conquest, county creation thus lies in the transition between mere white entitlement and actual title. And as a consequence of this history, counties came to underpin the national jurisdiction, and the local institution of the registry became the common and continuous infrastructure for the entire national real-estate market. This Article's history of the title registry underscores the conceptual and practical stakes of redressing the erasure of race from our understanding of legal institutions and development. In particular, this history challenges us to recognize less obvious ways that the legacies of conquest and enslavement survive to structure our landscape and lives. Race works to shape law and legal outcomes in ways that many now recognize, such as by excluding people from institutional protections and benefits and through the predatory risks of formal inclusion. But the registry's history also illustrates a third phenomenon: the phenomenon of legal innovation spurred by white settlers' willingness to view racial violence as an economic resource, which introduced new institutions and practices that may appear to be facially 'race-neutral' but promote the production of property value through the dehumanizing logic of race. Colonists constructed minimalist registries, which did not authenticate title claims and encouraged their proliferation. In this way, they prioritized the collective goal of building jurisdictional power at the direct expense of Native and Black communities whose lands and people colonists rapaciously claimed as property for that ever-growing market. The result was an institution that continues to privilege the production of property value above all--above protecting individual property interests, and above sustaining homes, communities, and life, in ways that now affect us all., ARTICLE CONTENTS INTRODUCTION 1490 I. CREATING PROPERTY, REGISTRIES, AND JURISDICTIONS IN THE 1499 COLONIES A. The Invention of the American Title Registry 1503 B. The Registry as a Tool for [...]

In Apprendi v. New Jersey, the Supreme Court announced what is now a seminal rule of constitutional criminal procedure: any fact that increases the penalty for a crime beyond the prescribed statutory maximum cannot be found by a judge, but must be submitted to a jury and proved beyond a reasonable doubt. The doctrine arising from Apprendi and its descendant cases had, until recently, been confined to the sentencing context. But in 2019, the Court in United States v. Haymond considered a potential expansion of Apprendi to judicial revocations of federal supervised release. The Court ultimately handed down a 4-1-4 decision with minimal precedential value, but since then, there has been a swell of scholarship discussing the applicability of the jury right to this new context. Much of this discussion has centered around the questions of constitutional interpretation raised by Haymond, and whether a revocation proceeding is part of a 'criminal prosecution' as specified by the text of the Sixth Amendment. This Note argues for a different approach. Revisiting the Apprendi cases and their contemporary scholarly treatment reveals that the doctrine was rooted not in novel methods of textual interpretation, but in fundamental principles of substantive criminal law: what constitutes 'crime' and 'punishment.' Existing scholarship has not provided an answer to how these principles might apply to a function that takes place after sentencing and final judgment, like revocation of supervised release. I therefore introduce a retroactive theory of revocation that rationalizes Apprendis definition of crime and punishment within this context. Under this theory, revocation proceedings are unconstitutional not because they are directly covered by the Sixth Amendment right to a jury trial, but because they circumvent a person's original jury trial by allowing them to be 'punished' for a different 'crime.' This means that every revocation of supervised release violates Apprendi. Moreover, the retroactive theory suggests that other forms of post-judgment penalties, like extensions of probation and criminal fees, can similarly run afoul of the Sixth Amendment's protections., NOTE CONTENTS INTRODUCTION 1729 I. REVISITING THE APPRENDI LEGACY 1738 A. Apprendi, Ring, and Blakely: The Jury Verdict's 1739 'Authorization' B. Alleyne v. United States and a Defendant's 1744 Sentencing [...]

For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to--and often do--surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court's jurisprudence demonstrates that the doctrine functions as a selective shield that offers no support for certain rightsholders. We argue that the Court's approach undermines vital rights, with especially harmful consequences for people who most need judicial protection. Since individuals accused of crime are often extremely vulnerable to coercive government measures, the important safeguards offered by the unconstitutional conditions doctrine should be at their height in the criminal procedure setting. Indeed, lower federal courts and some state courts have applied the doctrine to criminal procedure issues, demonstrating the doctrine's utility in this domain. We conclude that the Supreme Court's aversion to leveraging the unconstitutional conditions doctrine in its criminal procedure docket rests not on a principled doctrinal distinction, but on a failure to take seriously the constitutional predicaments facing those charged with crimes. In accordance with its obligation to render equal justice under law, the Court must apply the unconstitutional conditions doctrine in this most critical area., ARTICLE CONTENTS INTRODUCTION 1405 I. CURRENT SCHOLARSHIP ON THE UNCONSTITUTIONAL CONDITIONS DOCTRINE 1412 II. THE UNCONSTITUTIONAL CONDITIONS LANDSCAPE IN SUPREME COURT JURISPRUDENCE 1415 A. First Amendment Unconstitutional Conditions 1417 Jurisprudence: [...]

The field of 'transitional justice' refers to a range of processes and mechanisms for accountability, truth-seeking, and reconciliation that governments and communities pursue in the aftermath of major societal traumas, including civil war, mass atrocities, and authoritarianism. This relatively new field emerged in the 1980s as scholars, practitioners, and policymakers looked for guidance to support post-authoritarian and post-communist transitions to democracy in Eastern Europe and Latin America. Since then, the field has grown rapidly--so rapidly that it is outpacing its capacity to learn from past mistakes. Recent methodological advances in the study of public attitudes about transitional justice through quantitative surveys and qualitative interview methods provide unprecedented insights into how different mechanisms--including domestic and international prosecutions, truth commissions, amnesty laws, and compensation--are perceived by their intended beneficiaries. The results have been troubling. Numerous studies in diverse contexts found that some of the most well-known transitional justice mechanisms, including those employed in South Africa, Rwanda, and Cambodia, failed to achieve their objectives of peacebuilding and reconciliation. In some cases, these policies had harmful consequences for their intended beneficiaries, including retraumatization and perceived 'justice gaps' between victims' preferred remedies and their actual outcomes. There is an urgent need for the field of transitional justice to learn from this growing body of empirical research to develop evidence-based policies and programs that achieve their intended objectives. This Feature critically reviews the intellectual development of the field, consolidating empirical findings of relevant studies across disciplines--law, political science, sociology, economics, public health, psychology, and anthropology--and identifying open debates and questions for future research. We focus on research about public attitudes toward transitional justice in the communities directly impacted by conflict. In addition to reviewing previous research, we present new data from original public opinion surveys in Iraq and Ukraine relevant to ongoing transitional justice efforts in those countries. We use this evidence to identify lessons learned, including mistakes, in the design and implementation of previous transitional justice processes. We conclude by discussing the normative and prescriptive implications of our findings for efforts to improve future transitional justice laws and policies., FEATURE CONTENTS INTRODUCTION 1586 I. A BRIEF HISTORY OF THE FIELD 1592 A. What Is 'Transitional Justice'? 1593 B. Overview of Transitional Justice Mechanisms 1596 1. Criminal Prosecutions: Domestic, International, [...]

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court reaffirmed that laws prohibiting the carrying of firearms in sensitive places were presumptively constitutional. Since Bruen, several states and the District of Columbia have defended their sensitive-place laws by analogizing to historical statutes regulating firearms in other places, like schools and government buildings. Many judges, scholars, and litigants appear to have assumed that only statutes can count as evidence of the nation's historical tradition of firearm regulation. This Note is the first expansive account since Bruen to challenge this assumption. It argues that courts should consider sources of analogical precedent outside of statutory lawmaking when applying the Court's Second Amendment jurisprudence. Taking public transportation as a case study, the Note surveys rules and regulations promulgated by railroad corporations in the nineteenth century and argues that these sources reveal a historical tradition of regulating firearm carriage on public transportation. Bruen permits courts to engage in more nuanced analogical reasoning when dealing with unprecedented concerns or dramatic changes. One such change is the shift in state capacity that has placed sites that were privately or quasi-publicly operated before the twentieth century under public control in the twenty-first century. As in the case of schools, which the Court has already deemed sensitive, a substantial portion of the nation's transportation infrastructure in the nineteenth century was not entirely publicly owned and operated. For this reason, courts should consider evidence of historical firearm regulations enacted not just by legislatures but by quasi-public or private corporations. This case study instructs that courts and litigants can best honor Bruens history-based test by considering all of the nation's history of firearm regulation., NOTE CONTENTS INTRODUCTION 1678 I. RAILROADS AS REGULATORS 1684 A. Quasi-Public Rail 1685 B. Limits on Gun Carriage in Passenger Cars 1690 C. Limits on Firearms in Baggage 1697 II. [...]

Private equity has become a dominant force in distressed investing and Chapter 11 corporate reorganization. As a result, three new types of attorney conflicts have emerged, each of which threatens to undermine the efficacy and credibility of the bankruptcy system. Bankruptcy judges, practitioners, and scholars must respond. This Comment provides those stakeholders with a doctrinal and normative framework to understand the conflicts that pervade the system. In particular, this Comment defines three types of conflicts, explains how each threatens the functionality of Chapter 11 corporate restructuring, lays the doctrinal groundwork for a new understanding of attorney disinterestedness, and provides solutions to mitigate the relevant conflicts. In doing so, this Comment provides much-needed guidance to bankruptcy stakeholders who are keen to ensure debtor estates receive competent, loyal, and zealous representation., INTRODUCTION 1126 I. PRIVATE EQUITY'S CENTRAL ROLE IN INSOLVENCY 1130 A. The Relevance of Attorney Conflicts Has Increased with the Power of Private Equity 1132 II. CONSTRAINTS AND DUTIES OF [...]

This study examines the remaining options for sport managers to balance the interests of college athletes and the National Collegiate Athletic Association (NCAA) in regulating college athlete name, image, and likeness (NIL). The paper is divided into six substantive sections. The first section, "Background: The NCAA's Defense of NIL Restrictions," provides a brief history of the NCAA's legal defense to challenges against its NIL regulations. The second section, "U.S. Congress Is Unlikely to Regulate College Athletes' NIL Rights," addresses proposed federal legislation and Congress' willingness to regulate the use of NIL by college athletes. The third section, "The Impact of O'Bannon and Alston on NCAA's NIL Restraints," examines controlling case law, specifically O'Bannon v. NCAA and NCAA v. Alston, and how current antitrust law precedent shapes the scope by which the NCAA can regulate college athletes' NIL. The fourth section, "State Laws Regulating the NIL Marketplace," addresses state legislation regulating college athlete NIL use. The fifth section, "The Applicability of Labor Law to Regulating College Athletes' NIL," discusses the current college athlete NIL marketplace and analyzes whether labor law presents an optimal way forward for the NCAA to regulate NIL post-Alston. The sixth section, "College Athletes' Employee Status as a Pathway to Redefine the NCAA's Amateurism," concludes by examining the law's role in regulating NIL and discussing stakeholder implications. [ABSTRACT FROM AUTHOR]