Exposed: Asking the Wrong Question in Risk Regulation

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Catherine A. O’Neill. Back in 1973, the tuna industry wanted to know how much fish Americans were eating. After asking 7,662 households to record their daily fish intake, the answer came back: people ate fish, but not very often—about once a month. While tuna purveyors mulled what to do with this information, the U.S. Environmental Protection Agency (EPA) borrowed their dataset. EPA used these data to derive a key variable in the equation for calculating people’s exposure to toxic contaminants in the nation’s waters: the fish consumption rate (FCR). This FCR served as the premise for EPA’s initial volley of water quality criteria in 1980 and, subsequently, for water quality standards across the nation. Even today, several states’ water quality standards are based on this FCR, which assumes that people…
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Target Discrimination: Protecting the Second Amendment Rights of Women and Minorities

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Daniel Peabody. In one of the darkest moments of United States jurisprudence, Chief Justice Roger Taney listed a “parade of horribles” that would result if freed African-Americans were considered “citizens.” This list included the idea that “persons of the negro race, who were recognized as citizens in any one State of the Union,” would have the right “to keep and carry arms wherever they went.” The Dred Scott Court considered African-Americans carrying firearms as too much to bear. While the Dred Scott Court sought to limit minorities’ rights to bear arms when defining “citizen,” the Supreme Court must soon consider protecting the rights of minorities to bear arms when defining the word “bear” in the Second Amendment. Full Article 
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State Constitution Perpetuities Provisions: Derivation, Meaning, and Application

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Les Raatz. The Rule Against Perpetuities, over the last decade or so, has attracted greater attention within areas of the estate planning bar. There are interrelated factors that are the primary reasons for this attention. One is the marketing of trusts that are designed to better protect against the ability of creditors of the beneficiaries of a trust to reach assets of the trust to satisfy their claims. Lengthening the period that such assets may remain unvested in beneficiaries in the trusts is touted as enhancing their value and usefulness. The longer period to defer vesting also has beneficial estate tax consequences. If trust property can be held for generations in a trust not subject to the common-law rule requiring the vesting of interests of the trust in the beneficiaries…
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Exploring the Spectrum: How the Law May Advance a Social Movement

2016, Past Issues, Print, Volume 48 (2016) Issue 2 (Summer)
Tiffani Darden. The school-to-prison pipeline too often places young people into a hamster’s spinning wheel. According to the Department of Justice, suspension from school diminishes a student’s chance to graduate from high school and increases a student’s chance at entering the juvenile justice system. The rollercoaster halts only when interrupted by a young person’s confrontation with adult criminal courts. In my opinion, a balanced approach, reconfigured to critique public education alongside youth correctional facilities, will more fully develop our understanding of the problem and assist in crafting holistic solutions. Children should not suffer undue trauma associated with adjudication, the “delinquent” label, and separation from supportive family and community networks. The school-to-prison pipeline literature places a heavy onus upon public schools to reform internal policies—scholars focus heavily on prevention at the…
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Managing Our Blind Spot: The Role of Bias in the School-to-Prison Pipeline

2016, Past Issues, Print, Volume 48 (2016) Issue 2 (Summer)
Laura R. McNeal. For decades, we have witnessed the increased criminalization of our nation’s youth, especially youth of color and students with disabilities, through the implementation of “zero tolerance” policies and overly harsh school disciplinary practices. Instead of improving school safety, these practices have blurred the lines between school discipline and school safety, pushing students out of school and into the juvenile justice system. Perhaps most troubling and relevant are the concerns expressed in the post-Ferguson era regarding allegations of inappropriate and excessive use of force by school police on students. In schools all over the nation, school police carry and use tasers and pepper spray in situations that do not call for this type of weaponry. Every year there is a new series of local news articles highlighting students…
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Dismantling the School-to-Prison Pipeline: Tools for Change

2016, Past Issues, Print, Volume 48 (2016) Issue 2 (Summer)
Jason P. Nance. The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system, such as excluding them from school. This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color. But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately support and implement. Further, it suggests initial strategies aimed at addressing implicit racial bias, which appears to be one of the primary causes of the racial disparities…
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The Misidentification of Children with Disabilities: A Harm with No Foul

2016, Past Issues, Print, Volume 48 (2016) Issue 2 (Summer)
Claire Raj. Special education, despite being a uniform federal mandate, is often implemented drastically differently depending on the school system delivering services, the particular category of disability, and the race or ethnicity of students. Affluent white children who attend well-managed school districts tend to benefit from special education services. In the under-funded and over-tasked districts where most minorities attend school, the special education system does not always provide the same benefits. In these schools, special education, too often, operates as a dumping ground for those students the general education system cannot or refuses to serve. In these instances, the label of “special education” may carry harms that outweigh its benefits. Full Article
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Returning to Plato’s Cave: Metadata’s Shadows in the Courtroom

2016, Past Issues, Print, Volume 48 (2016) Issue 2 (Summer)
Zachary Rosenberg. The computer revolution changed every facet of our lives, including litigation. Though computer interfaces are designed to display information through familiar renderings of everyday physical objects, computer files are stored and behave differently from their physical counterparts. Metadata, the information contained in a computer file that are almost invisible to users, can profoundly affect the admissibility and authenticity of digital files. This paper explains what metadata are and the role they play in litigation to authenticate other evidence or as evidence in itself. This paper proposes a new best practice for attorneys: whenever a lawyer receives an electronic file or hard drive from a client, the attorney should immediately back up and forensically image it so that the metadata are preserved. Full Article
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Firewise: The Value of Voluntary Action and Standard Approaches to Reducing Wildfire Risk

2016, Past Issues, Print, Volume 48 (2016) Issue 1 (Spring)
Faith Berry, Lucian Deaton & Michele Steinberg. Regionally, nationally and globally, threats to life, property and resources from wildfire are growing. Changing climate conditions, growth of vulnerable communities into high-hazard areas, and limited governmental and financial resources available to cope with this threat all mean that wildfire losses are expected to continue and expand. It is not possible to find a single and simple solution to all of the problems that the scenario of larger, damaging wildfire presents. However, when focusing on how to prevent wildland/urban interface (WUI) fire disasters—the destruction of dozens or hundreds of structures during significant wildfire events—researchers and safety advocates have discovered solutions in the form of voluntary community action to reduce wildfire risks around homes and neighborhoods, and in sound design and construction standards that…
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Friedrich A. Hayek, the U.S. Constitution, and Institutional Design

2016, Past Issues, Print, Volume 48 (2016) Issue 1 (Spring)
Steven Gow Calabresi. In their article, Against Design, Caryn Devins, Roger Koppl, Stuart Kauffman, and Teppo Felin argue that it is impossible for any lawmaker to successfully design a Constitution or a law so that it will produce the ends that the legislator wishes to enact. The authors argue that institutional design is impossible because every such design in law sets in motion a Spontaneous System of Order, which then develops the law or institution in ways the Framers of such laws and institutions could never have imagined. This is the case because changing circumstances and unforeseeable inventions and developments render all laws and institutions infinitely malleable. The authors thus challenge the use of Original Public Meaning in constitutional interpretation saying that the theory fails because the Framers never even…
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