Essentializing Labor Before, During, and After the Coronavirus Pandemic

2020, Current Issue, Print, Volume 52 (2020) Issue 4 (Winter)
Deepa Das Acevedo*Full Article.AbstractIn the era of COVID-19, the term essential labor has become part of our daily lexicon. Between March and May 2020, essential labor was not just the only kind of paid labor occurring across most of the United States; it was also, many argued, the only thing preventing utter economic and humanitarian collapse. As a result of this sudden significance, legal scholars, workers’ advocates, and politicians have scrambled to articulate exactly what makes essential labor “essential.” Some commentators have also argued that the rise of essential labor as a conceptual category disrupts—or should disrupt—longstanding patterns in the way the nation regulates work.Contrary to this emerging narrative, this Article argues that essentiality is not at all new to the way we conceptualize and regulate labor in the United…
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Substance Use Disorder Discrimination and the CARES Act: Using Disability Law To Inform Part 2 Rulemaking

2020, Current Issue, Print, Volume 52 (2020) Issue 4 (Winter)
Kelly K. Dineen* & Elizabeth Pendo**Full Article.IntroductionSubstance use disorder (SUD) is a chronic health condition[1]—like people with other chronic health conditions, people with SUDs experience periods of remission and periods of exacerbation or recurrence.[2] Unlike people with most other chronic conditions, people with SUDs may be more likely to garner law enforcement attention than medical attention during a recurrence. They are also chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. The COVID-19 pandemic has had devastating consequences for people with SUDs, who are at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes.[3] Meanwhile, there are early indications that pandemic conditions have led to new and increased drug use,[4] and overdose deaths are surging.[5] More than ever, people with SUDs need access to evidence-based treatment…
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Bankruptcy as Consumer Protection: The Case of Student Loans

2020, Current Issue, Print, Volume 52 (2020) Issue 4 (Winter)
John Patrick Hunt* Full Article. Abstract Over 300,000 student loan borrowers have applied to the Department of Education for administrative relief from federal student loans on the ground that they were deceived or otherwise victimized by their schools. The Department adopted relatively borrower-friendly rules for this process in 2016. But under Secretary DeVos, the Department changed course and adopted new rules that make it “nearly impossible” for student borrowers to prevail. After a presidential veto of a resolution that would have stopped the new rules, they went into effect on July 1, 2020. With victimized students effectively deprived of administrative relief, bankruptcy provides at least a partial solution. Many such borrowers will be candidates for bankruptcy: The median loan default rate at for-profit colleges sued or investigated for wrongdoing against…
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The Personal Responsibility Pandemic: Centering Solidarity in Public Health and Employment Law

2020, Current Issue, Print, Volume 52 (2020) Issue 4 (Winter)
ByLindsay F. Wiley* and Samuel R. Bagenstos**Full Article.IntroductionOur nation’s response to the coronavirus pandemic has revealed fundamental flaws in our legal regimes governing both public health and employment. Public health orders have called on individuals to make sacrifices to protect society as a whole. Simple fairness dictates that the burdens should be shared as widely as the benefits. And the case for burden-sharing does not rest on fairness alone. Public health measures are more likely to succeed when those who are subject to them understand them as fair[1] and when their cooperation is supported.[2] Predictably, our pandemic response has placed disproportionate burdens on those who are already disadvantaged due to economic, racial, gender, disability, immigration, and criminal injustice.[3] Elected officials have asked each of us to take personal responsibility for…
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The Forgotten “Student” in “Student– Athlete”: Why a New Cause of Action Is Needed To Remind Universities that Education Comes First

2020, Current Issue, Print, Volume 52 (2020) Issue 4 (Winter)
By Jacob Abrahamian*Full Article.I. IntroductionIn January 2019, the National Collegiate Athletic Association (NCAA) found the University of Missouri guilty of academic misconduct and imposed severe penalties on its football, baseball, and softball programs.[1] A two-year investigation by the NCAA revealed that a tutor had completed academic coursework for twelve of Missouri’s student–athletes, including having completed an entire course for one student.[2] The penalties were harsh; the NCAA banned each program for one year, vacated records from when the twelve athletes participated, reduced scholarship money, restricted recruiting, and imposed fines, among other punishments.[3] After an appeal, the NCAA upheld its sanctions in full.[4] Fans of the Missouri Tigers were outraged by the decision, but not because they doubted that violations had occurred.[5] In fact, Missouri officials admitted to the misconduct.[6]Instead, the…
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Commuted Sentences: Could You Ask for More?

2020, Current Issue, Print, Volume 52 (2020) Issue 4 (Winter)
By Austin Moylan*Full Article.I. IntroductionThe United States is home to approximately 330 million people.[1] Strikingly, 2.3 million of them are behind bars.[2] For every 100,000 people in the United States, nearly 700 are in prison, an incarceration rate unmatched by any other country.[3] And despite having only 4% of the world’s population, the United States has an estimated one-third of the world’s prisoners serving life sentences.[4]The problems caused by mass incarceration are varied and significant. Annual spending on corrections at the state level alone totaled almost $57 billion in 2015.[5] And there appears to be little payoff either, as recidivism rates remain high; three quarters of those released from prison will be arrested within five years and over half will end up back in prison.[6] The lack of payoff is…
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Bivens or Nothing: Constitutional Torts and Cross-Border Shootings

2020, Current Issue, Print, Volume 52 (2020) Issue 4 (Winter)
By Ben Shattuck* Full Article. “It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.”[1]   “Bivens is a relic of the heady days in which this Court assumed common‑law powers to create causes of action.”[2] Introduction On June 7, 2010, fifteen-year-old Sergio Adrián Hernández Güereca (Hernández) was playing with a group of friends in the cement culvert separating El Paso, Texas, and Ciudad Juarez, Chihuahua, Mexico.[3] The boys were allegedly playing a game in which they would run up the incline of the culvert and touch the barbed-wire fence separating the United States and Mexico and then run back into the culvert.[4] While the boys were playing, United States…
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The Unkindness of Fate: Why Atkins v. Virginia Warrants an Extension to Capital Defendants with a Cluster B Personality Disorder

2020, Current Issue, Online, Volume 52 (2020) Issue 4 (Winter)
By Olivia Meme** Full Article. I. Introduction. Daryl Renard Atkins never finished high school.[1] His trouble with academics began when he was held back in the second grade and continued throughout elementary and middle school, where he maintained a “D” grade average.[2] His middle school transcripts noted “he did not meet the requirements for promotion to high school.”[3] Socially, Atkins was described as a “follower” whose “limited intellect would result in ‘reduced judgments and reduced understanding of the world in general around him compared to others.’”[4] He accrued twenty-one felony convictions between the ages of thirteen and eighteen.[5] Atkins’s former teachers described him as having “a constant problem with authority, tardiness, loitering, [and] disciplinary problems.”[6] After repeating the tenth grade, Atkins was placed in a classroom meant for “slow learners,” with…
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Ag-gag in the Aftermath of Free Speech Claims: How Iowa Rewrote Its Unconstitutional Agricultural Protection Law

Current Issue, Online, Volume 52 (2020) Issue 4 (Winter)
Avery Topel* Full Article. I. Introduction The undercover investigation into Iowa Select Farms is disturbing.[1] Recordings show farm workers smashing baby piglets against a concrete floor, young animals being kicked and stomped on, and unanesthetized tail cuttings and castrations.[2] At another Iowa facility, Sparboe Egg Farms, an undercover investigation revealed hens suffering from burned beaks, open wounds, and filthy living conditions.[3] The publicized video led McDonald’s to end its relationship with Sparboe.[4] At a third Iowa farm, pigs were beaten and kicked while a supervisor instructed an undercover investigator: “You gotta beat on the bitch. Make her cry.”[5] As a result, several employees were fired and charged with animal abuse.[6] While these investigations took place on Iowa farms, similar reports can be found in dozens of states, especially those that…
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