Legal Studies Research Paper Series

(From Legal Scholarship Network: Legal Studies Research Paper Series, University of North Carolina RSS)

Blurred Lines: Public School Reforms and the Privatization of Public Education

Erika K. Wilson
This Article critically examines the rise of market-based public school reforms. It argues that market-based public school reforms result in quality public education being normatively conceptualized and treated as what political economists call a private good rather than a public good. While public education is admittedly not a pure public good, it is widely recognized as a quasi or impure public good that benefits society as a whole in many ways. Yet market-based public school reforms situate public education as a private good by diminishing public education’s ability to truly bring positive externalities to society as a whole. They do so by situating the positive externalities associated with a quality public education in ways that do not benefit the greater society. Instead, market-based public school reforms allow a shallow subset of people to take advantage of market-like exchanges to select — rather than be assigned to — a particular school that they believe will provide a quality public education for only them. Little regard is given to the overall quality of education received by students collectively. Instead, market-based public school reforms allow students to individually improve their own lot, while failing to address systemic issues that plague many low-quality public schools. For these reasons, this Article makes a normative argument in favor of re-thinking market-based reforms as the primary vehicle for improving educational opportunities for poor and minority students.

-January 23, 2017

Court Transparency and the First Amendment

David S. Ardia
“Publicity is the very soul of justice,” legal philosopher Jeremy Bentham wrote in 1827. Regrettably, lady justice is at risk of losing her soul. In courts across the country, secrecy is increasingly the norm. Indeed, the extent of secrecy in American courts is astonishing, especially given the assumption by many that the First Amendment guarantees a right of public access to the courts. In reality, the United States Supreme Court has explicitly held only that there is a First Amendment right of public access to criminal trials and pre-trial proceedings. The Court has never addressed the question of whether there is a constitutional right of access to civil proceedings or to court records. Moreover, the Court’s last pronouncement on this issue occurred more than a quarter of a century ago and left the lower courts with a confusing and inconsistent doctrinal roadmap for dealing with public access questions. In the intervening decades, public access to the courts has been quietly under siege. This is a critical time for court transparency because the courts, like so many institutions of government, are in the midst of a transformation from the largely paper-based world of the twentieth century to an interconnected, electronic world where physical and temporal barriers to information are disappearing. Not surprisingly, the shift to electronic access to the courts can implicate important privacy interests. As a result of these and other concerns, a number of courts and legislatures are considering sharply limiting public access to certain court proceedings and records. We can, however, put court transparency on a firm theoretical foundation by focusing on the structural role the First Amendment plays in our constitutional system. In doing so, this Article makes two related arguments. First, a central purpose of the First Amendment is to ensure that citizens can effectively participate in and contribute to our republican system of self-government. Second, in order to effectuate this goal, the First Amendment must be understood to embody an affirmative right of access to information held by the courts, which by virtue of their unique institutional position possess information that is essential for the public to effectively evaluate the workings of government and therefore to act as sovereigns over the government. Drawing on these conclusions, this Article reworks existing First Amendment doctrine to shift the emphasis away from the question of whether the public has a right of access to individual judicial proceedings or records to whether the interests supporting secrecy outweigh the structural benefits of public access. This reworking of public access doctrine provides a principled way for courts to evaluate the interests in secrecy while at the same time ensuring that the public’s right of access to the courts is retained.

-March 10, 2017

Venezuela as a Case Study in Limited (Sovereign) Liability

Mark C. Weidemaier and Matthew Gauthier
Venezuela is in a severe economic crisis. An October 2016 debt swap bought some time for the beleaguered state-owned oil company Petróleos de Venezuela, S.A. (PDVSA), but there remains speculation about default by both PDVSA and the government. The fact that Venezuela’s economy is heavily dependent on oil exports has led some observers to assume that, in the wake of a default, creditors could easily seize assets associated with natural resource exploitation. In this article, we explore some of the legal considerations that would govern such litigation. Our primary claim is that matters are not so simple. Even ignoring issues associated with sovereign immunity and bankruptcy law, we emphasize the doctrine of separate corporate personhood (i.e., the fiction that corporations are independent legal persons responsible for their own, and only their own, debts). We do not purport to predict the outcome of any disputes that might arise in the wake of a default. Instead, we use Venezuela as a case study, identifying the many ways in which the doctrine of separate corporate personhood may affect the relative rights and bargaining power of a sovereign debtor and its creditors.

-January 23, 2017

The Community Politics of Domestic Violence

Deborah M. Weissman
Gender violence has long been identified as a crisis of epidemic proportions that defies facile solution. Despite decades of law reform, and notwithstanding increased social services and public health interventions, the rates of gender violence have not appreciably declined. The field of domestic violence advocacy is itself in a crisis, and it has been difficult to discern the best way forward. Despite its intellectual and practical engagement, the domestic violence movement seems unable to shift from the neoliberal paradigm that emphasize the features associated with the carceral state while appearing indifferent to the structural sources of domestic violence as a social problem. Reliance on the criminal justice system has tended to fracture the domestic violence movement even as it marginalized itself from disenfranchised populations. This Article offers a case study of an incident that occurred between the Sheriff of San Francisco and his wife in December 2011 that resulted in domestic-violence related criminal proceedings and additional charges of official misconduct and efforts by the Mayor to remove him from the office of Sheriff. The Sheriff had been recently elected largely as a result of a coalition of marginalized communities, immigrant rights advocates, environmental justice organizations, labor groups, and other progressive organizations. The case reached beyond the courts and city hall into neighborhoods and households, and community meeting places throughout the city. The legal and public citizen commentary offered throughout nine months of proceedings against the Sheriff set in relief the contradictions and tensions emblematic of the crisis that confronts the domestic violence movement. The case provide a unique opportunity to consider the problems of domestic violence anew, a way to interrogate old premises and presumptions, examine prevailing practices, and reconsider responses. This Article addresses the perils attending over-reliance on criminal justice paradigms as remedy for domestic violence, that –- in fact -– deployment of law enforcement methods has acted not only to diminish the efficacy of domestic violence strategies but also to diminish the relevance of domestic violence advocacy to the social justice movement. To rely on models of victimhood as the means to obtain the intervention of criminal justice remedies implies loss of voice and agency, whereby the interests of the “victim” are preempted in discharge of larger logic of the criminal justice system. That domestic violence advocates identify with criminal justice remedies, moreover, at a time when law enforcement practices are under scrutiny and suspicion within marginalized communities, has acted to deepen the breach between domestic violence advocates and the social justice movement. The Article offers an opportunity to reconsider the definition of domestic violence as well as the criminal justice and community response to this problem. It seeks to re-engage in dialogue about the private/public dichotomy without returning to a point in time where private abuse between intimate partners can be considered of little or no socio-political or legal import. Domestic violence persists as a manifestation of gender and other forms of inequality and social norms that oppress and repress its victims. But the mainstream responses often accomplish little to eliminate or repair the damage caused by intimate partner violence. The Article reiterates the recommendations scholars have offered in recent years as alternatives to criminal justice remedies and suggests that what is lacking is not prescriptives but rather political will.

-January 23, 2017

Holle (Arizona State Supreme Court) -- Amici Curiae Brief of Law Professors in Support of Respondent's motion for reconsideration

Carissa Byrne Hessick
In State v. Holle, the Supreme Court of Arizona held that the legislature may redefine the crime of child molestation to include the intentional touching of any part of the genitals, anus or female breast of a minor, and it may place the burden to prove that such touching was not the result of a sexual motivation on the defendant. In this brief, law professors explain why this burden shifting raises serious constitutional questions and thus why the Supreme Court should reconsider its previous ruling and construe the statute so that sexual motivation is an element of the crime rather than an affirmative defense.

-December 20, 2016

Friendly and Hostile Deals in the Market for Sovereign Control: A Response to Professors Blocher and Gulati

John F. Coyle
In their wide-ranging and thought-provoking article, A Market for Sovereign Control, Joseph Blocher and Mitu Gulati argue that territorial sovereignty is a commodity that can and should be subject to market forces. In this Response, I first identify the two different types of deals — friendly and hostile — that can occur within a market for sovereign control. I then discuss some of the obstacles that may impede the successful conclusion of each type of deal. In friendly deals, all of the affected parties consent to the transfer of territory from one sovereign to another. The most significant barriers to friendly deals are not legal. They are political. In the modern era, there are few (if any) incentives for national political leaders on the seller side to participate in such a market. Until these incentives change, I argue, it is unlikely that a robust market for sovereign control will develop with respect to friendly deals. In hostile deals, one sovereign refuses to consent to the annexation of one of its regions by another sovereign. In these situations, Blocher and Gulati argue that the rules of international law should be rewritten to permit the annexation over the objections of the objecting country provided certain conditions are met. I argue that the nations of the world are unlikely to consent to the rewriting of these rules. I argue further that there is no obvious means — short of the use of force — by which these new rules could be enforced against nations that refuse to obey them. Until these rule-making and rule-enforcing obstacles are overcome, I argue, it is also unlikely that a robust market for sovereign control will develop with respect to hostile deals.

-February 8, 2017

Black Power in a Prison Library

Alfred L. Brophy
"Black Power in a Prison Library" focuses on a list of 90 books on the black experience in America that were ordered added to the Marion, Ohio Correctional Institution in 1972. It uses the list as a way of gauging what books the plaintiffs (and thus the court) thought were essential to telling the African American experience. And in that way, we can use the list to reconstruct the contours of the bibliographic world of the African American experience in the early 1970s. The list reflects an interest in history of slavery, Reconstruction and Jim Crow, the literature of the Harlem Renaissance, the 1960s Civil Rights Movement, and contemporary works on Black Power. Notably thin is prison literature. Together the books help form a picture of the critique of law made by Black Power writers and the ways those claims built on historical, sociological, and civil rights literature. The book list, thus, suggests some of the ways that books propagated and gave definition to Black Power claims.

-February 7, 2017

Law, Policy, and the Future of Solar Financing

Heather Payne and Victor Byers Flatt
All forms of renewable energy are at an inflection point. Falling costs, changing technology, and new environmental and climate regulations have all moved to exponentially increase the growth of renewable energy. How legal terms, such as "qualifying facility" under PURPA are interpreted and standardized in the states, and various tax policies can have large implications on the penetration of solar energy.

-February 7, 2017

Taxing the Gig Economy

Kathleen DeLaney Thomas
Due to advances in technology like mobile applications and online platforms, millions of American workers now earn income through “gig” work, which allows them the flexibility to set their own hours and choose which jobs to take. To the surprise of many gig workers, the tax law considers them to be “business owners,” which subjects them to onerous recordkeeping and filing requirements, along with the obligation to pay quarterly estimated taxes. This Article proposes two reforms that would drastically reduce compliance burdens for this new generation of business owners, while simultaneously enhancing the government’s ability to collect tax revenue. First, Congress should create a “non-employee withholding” regime that would allow online platform companies such as Uber to withhold taxes for their workers without being classified as employers. Second, the Article proposes a “standard business deduction” for gig workers, which would eliminate the need to track and report business expenses. Although this Article focuses on the gig economy as an illustration of how the workplace has evolved in recent years, the proposals apply more broadly to taxation of small, individually run businesses. In an era when the use of cash is on the decline and information can be shared rapidly and at little cost, it is time for policymakers to institute a more modern tax enforcement regime for small businesses.

-February 8, 2017

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