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Nicholas Ansel* Full Article. I. Introduction 2020 brought the world’s attention to bear on American policing and the American carceral regime. After the murder of George Floyd on May 25, 2020, protests erupted in every state in America.[1] By early July, experts estimated that “about 15 million to 26 million people in the United States ha[d] participated in demonstrations,” representing “the largest movement in the country’s history.”[2] As of mid-October, Black Lives Matter demonstrations still continue in many cities.[3] America now cages more people than any other country in the history of Earth, incarcerating African Americans “at a rate six times that of South Africa during Apartheid.”[4] The murder of George Floyd represented a crystallization of the American criminal project’s treatment of black and brown communities, of marginalized communities, of…

Robert Thomas* Full Article. Abstract Corporate criminal law is built atop the doctrine of respondeat superior, whereby a business organization can be convicted for virtually any crime committed by its employee. Critics have noted for more than a century that this rule of attribution exposes businesses to the prospect of more criminal liability than is either just or efficient—in short, respondeat superior is overbroad. By contrast, virtually no attention has been paid to the fact that this same doctrine is also underbroad; in addition to including too much conduct under its ambit, respondeat superior also captures too little misconduct. However, this formal symmetry belies a deep, substantive asymmetry. The ambition of this project is to show that respondeat superior’s underbreadth problems are—or, at the very least, are becoming—both more serious…

Jonathan Remy Nash* Full Article. Abstract Who, besides the U.S. Department of Justice, can prosecute criminal actions in federal court? This Article considers this question, which has arisen recently in various contexts—the DOJ’s attempt to abort the prosecution of former National Security Advisor Michael Flynn, the contempt prosecution of former Sheriff Joseph Arpaio (who received a presidential pardon), the confrontation over the court-appointed interim U.S. Attorney in New York, and a local District Attorney’s threats to prosecute lawbreaking federal law enforcement officials. Consider first nontraditional, trial-level federal prosecutions. The Constitution’s Take Care and Appointments Clauses, as well as standing doctrine, preclude private prosecutions and prosecutions by states and Houses of Congress. Court-appointed interim U.S. Attorneys may oversee federal prosecutions, and court-appointed special prosecutors may prosecute criminal contempt cases. However, court-appointed…

John Coyle* & Katherine C. Richardson**Full Article.AbstractA forum selection clause is a contractual provision that selects a court for future disputes. Such clauses serve two primary functions. First, they may be used to redirect litigation from one state to another (an “outbound” clause). Second, they may be used to extend the personal jurisdiction of the chosen court over the contracting parties (an “inbound” clause). To date, scholars have focused most of their attention on the redirecting function played by outbound clauses. In this Article, we provide a definitive account of the role played by inbound clauses as means of obtaining personal jurisdiction over out-of-state defendants.This account is based on our review of 283 published and unpublished state court cases where the defendant challenged the enforceability of an inbound forum selection…

Naomi Cahn & June Carbone*Full Article.AbstractA series of Supreme Court decisions recognize the end of the federal–state–corporate partnership that once provided a foundation for employment security and family stability. That partnership, which reached its pinnacle during the industrial era, established a family wage made available to the majority of the male population through unionization, a social safety net that filled the gaps left by wage labor, and the extension of these public and private benefits to women and children through marriage.Uncoupling shows how family security and stability can no longer be linked to employment or marriage, requiring a redesign of the state response. The Supreme Court has framed the necessary elements in that response. First, although other scholars note that the Court’s marriage equality decision in Obergefell celebrates marriage, this…

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…

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…

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…

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…

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…