Fifty-two years ago, Congress enacted a one-of-a-kind civil rights directive. It requires every federal agency—and state and local grantees by extension—to take affirmative steps to undo segregation. In 2020, this overlooked Fair Housing Act provision—the “affirmatively furthering fair housing” or “AFFH” mandate—has heightened relevance. Perhaps most visible is Donald Trump’s racially charged “protect the suburbs” campaign rhetoric. In an apparent appeal to suburban constituents, his administration repealed a race-conscious fair housing rule, replacing it with a no-questions-asked regulation that elevates “local control” above civil rights. The maneuver is especially stark as protesters fill the streets, marching in opposition to systemic racism’s many forms. In this moment of racial awakening, it is critical to revisit how neighborhood segregation affects nearly all aspects of American life. We live in a racist ecosystem, and racial segregation is its defining feature. Segregation’s profound influence reinforces the importance of the AFFH mandate as a remedial tool. Drawing on recent events as a case study, this article examines the AFFH mandate’s potential to be our country’s most effective anti-segregation tool. First, this article accounts for the mandate’s historic failures. Second, it demonstrates why the Act must be amended to instill a durable compliance process at the local level. As currently configured in statute, the mandate is profoundly inadequate to meaningfully reduce segregation. But if amended, it has the unleashed power to reduce segregation at the local level. This has critical real-world implications—new studies reveal that even incremental reduction of neighborhood segregation decidedly improves quality-of-life outcomes, from education to health to life expectancy. Decades after Congress declared the government’s affirmative duty to undo it, housing segregation remains a profound collective problem that merits the resources necessary to systematically dismantle it. The stage is set for fair housing’s third act.
Evidence-based policy is gaining attention, and legislation and agency regulation have been no exception to calls for greater uptake of research evidence. Indeed, current interest in “moneyball for government” is part of a long history of efforts to promote research-based decisions in government, from the U.S. Census to cost-benefit analysis. But although evidence-based policy-making (EBPM) is often both feasible and desirable, there are reasons to be skeptical of the capacity of EBPM in governmental decision-making. EBPM is itself bounded by limits on rationality, the capacity of science, the objectivity of science, and the authority we wish to give technocrats. Where values are highly contentious, efforts to produce and use evidence in legislative and regulatory decisions may go so far awry that they become “sham” versions of evidence-based choices. In this Article, I name several of these sham practices, including the distortion of evidence, the engagement in “terminal” experimentation that destabilizes governmental programs, and “ratcheting” actions that defund entire priorities rather than individual approaches. Broken experimentation is also common, with evaluations of government programming and policies neglecting or misusing opportunities to provide rigorous evidence. I argue that the stakes of these misuses are high, resulting in losses of welfare and efficiency, erosion of scientific legitimacy, and infringement on the dignity of human subjects. But where genuine engagement with empirical evidence is possible, the game is surely worth the candle. This Article proposes novel ways to promote responsible uses of empirical evidence in both legislation and agency regulation, including evaluation mandates, pre-registration of evaluation protocols and transparency of research reports, ex ante decision commitments, and more attentive uses of judicial review.
Public health problems have a political economy rooted largely in public and private laws that both reflect the distribution of power in society and shape its policy responses. In this Article, we apply this perspective to the U.S. opioid crisis, which was triggered by a quadrupling of opioid prescribing beginning in the mid-1990s. Such staggering increases in opioid use are impossible to understand without unpacking the incentives and institutional pressures associated with the distribution and use of addictive legal drugs, particularly how those pressures can dilute the substantive goals and efficacy of regulatory governance. The policy response to the explosion of opioid use, addiction, and overdose contrasts sharply with the swift and punitive response to illicit drug markets in the 1980s and early 1990s, which involved harsh sentences, increased policing, and stricter border controls. Subsequently, as Americans increased their unlawful use of legally available drugs—products nominally subject to controls but often distributed in large quantities by actors with major incentives to encourage their use—pharmaceutical companies encountered, for the most part, a combination of legislatively created regulatory loopholes as well as patterns of lax state and federal enforcement. Doctors also encountered regulatory loopholes and lax enforcement, despite some efforts to develop databases in order to track prescriptions. Pain clinics and prescription “pill mills” proliferated. For drug companies, the ability to market addictive drugs by leveraging close relationships with doctors was facilitated by a variety of legal strategies that allowed for willful blindness on the part of physicians, which limited their risk of regulatory and criminal liability. The contrast relative to the enforcement strategies associated with use of traditional illicit drugs has been described as stemming in part from the presence of many white, middle-class opioid users and the relatively minor amount of violence and crime compared to the cocaine and methamphetamine epidemics. We add to that the influence of a large industry with a prominent role in the legal economy—an industry that encountered diluted regulatory governance over a product that has numerous legal and beneficial uses as well as the potential to be extremely destructive. Tort law still casts a shadow over some aspects of the opioid epidemic, but its reach and consequences in this context depend at least as much on the constraints affecting tort litigation and access to courts (including limits on class actions and remedies) as on the content of tort law doctrine. Over time, jurisdictions came to pursue civil remedies, prosecutors expanded the use of criminal sanctions, and policymakers began supporting stricter constraints on opioid production, distribution, and prescription. Yet these responses have been slow in coming and continue to face practical and political barriers. Although these observations do not yield a straightforward solution, they illuminate how institutional realities as well as political and economic pressures operate against the backdrop of various legal domains that can enable or exacerbate a public health crisis. Without taking those realities seriously, narrow interventions focused on a single area of law or isolated technical changes in treatment may prove largely ineffective.
Pharmacy benefit managers (PBMs) manage the drug benefits for over 95 percent of Americans with prescription drug coverage. However, conflicts of interest inherent in the PBM business model create perverse incentives for drug price increases. The most significant conflict of interest arises from manufacturer rebates paid to PBMs. PBMs negotiate rebates from drug manufacturers in exchange for giving the manufacturers’ drugs preferred status on a health plan’s formulary. Because the rebates paid to PBMs are typically a percentage of a drug’s list price, drug makers are pressured to increase list prices in order to satisfy PBMs’ demands for higher rebates. Although a portion of the increasing rebate dollars may eventually find its way to patients in the form of lower co-pays, many patients still suffer from the list prices increases. This Article analyzes various proposals to rein in PBM rebates and asserts that, compared to the other proposals, a point-of-sale rebate system maintains many of the benefits of selective contracting while minimizing incentives to increase drug list prices.
Consumers routinely supply personal data to technology companies in exchange for services. Yet, the relationship between the utility (U) consumers gain and the data (D) they supply — “return on data” (ROD) — remains largely unexplored. Expressed as a ratio, ROD = U / D. While lawmakers strongly advocate protecting consumer privacy, they tend to overlook ROD. Are the benefits of the services enjoyed by consumers, such as social networking and predictive search, commensurate with the value of the data extracted from them? How can consumers compare competing data-for-services deals? Currently, the legal frameworks regulating these transactions, including privacy law, aim primarily to protect personal data. They treat data protection as a standalone issue, distinct from the benefits consumers receive. This article, drawing on the emerging field of personalized law, suggests that privacy concerns should not be viewed in isolation, but as part of ROD. Just as businesses can quantify return on investment (ROI) to optimize investment decisions, individual consumers should be able to assess ROD in order to make informed decisions on how to spend and invest personal data. Making ROD transparent will enable consumers to navigate the range of data-for-services deals on offer, evaluate their merits, and negotiate their terms. Pivoting from the privacy paradigm to ROD will also incentivize technology companies to offer consumers higher ROD, as well as create opportunities for new market entrants.
This article challenges two widely-embraced theories about how public intimate spaces (e.g., toilets, locker rooms, showers, etc. hereinafter called bathrooms) first became separated by sex. The first challenged theory claims that the very first instance of sex-separation in public bathrooms occurred in 1739 at a ball held in a restaurant in Paris. Under this first view, sex-separation first emerged as a sign of upper-class gentility and elitism. The second challenged theory argues that a consistent practice of differentiating bathrooms by sex did not emerge until the late nineteenth century. According to this view, bathroom sex-separation was imposed when authorities overreacted to the notion of the intermingling of the sexes as women entered the workplace during the Industrial Revolution. Thus, the second view holds that bathroom sex-separation is rooted in sexism, paternalism and outdated Victorian notions of modesty. This article provides evidence to show that, while widely embraced by media, both of these theories are wrong. The author traces the 1739 Paris ball to its origins (a ball celebrating the wedding of the daughter of Louis XV), and demonstrates that scholars misinterpreted that event. Moreover, she demonstrates that bathrooms have long been separated by sex, and that the primary reason for that separation was securing safety for women and children in an atmosphere of harassment. Indeed, the sex-separation laws that emerged during the nineteenth century labor movement were among the earliest anti-sexual harassment laws in the nation. They did not fail because they sought to protect women; they failed because they did not secure similar protections for male-bodied victims. At the same time, the author argues that some lower and middle class sexual minorities and others sometimes wanted or needed different rules. She theorizes that a common was the masquerade balls. But even when they created such spaces by consent, and adopted intimate space approaches to suit their needs, authorities later forced them to abandon these approaches. Seeking to preserve their power positions, upper class sexual minorities may have cooperated in these suppression efforts. Historians erred in recounting the history of bathrooms because they misunderstood the language of earlier eras, they failed to sufficiently consider women's history and they ignored the condition of the poor. Thus, as they propose an explanation of sex-separation that advances the interests of some sexual minorities, they offer a narrative that oppresses women and the female-bodied generally, especially those in the middle and lower classes. Such histories erase evidence of women's historic struggles with sexual assault and sexual harassment. They similarly ignore the struggles of the poor for safe intimate spaces. Women and others must push back on approaches that contort women's history. They are rooted in sexism and patriarchy, even when they may be intended to advance freedom for other groups.
Legal scholars have long recognized that the media plays a key role in assuring the proper functioning of political and business markets. Yet we have understudied the role of law in assuring effective media scrutiny. This Article develops a theory of law as source. The basic premise is that the law not only regulates what the media can or cannot say, but also facilitates media scrutiny by producing information. Specifically, law enforcement actions, such as litigation or regulatory investigations, extract information on the behavior of powerful players in business or government. Journalists can then translate the information into biting investigative reports and diffuse them widely, thereby shaping players’ reputations and norms. Levels of accountability in society are therefore not simply a function of the effectiveness of the courts as a watchdog or the media as a watchdog, but rather a function of the interactions between the two watchdogs. This Article approaches, from multiple angles, the questions of how and how much the media relies on legal sources. I analyze the content of projects that won investigative reporting prizes in the past two decades; interview forty veteran reporters; scour a reporters-only database of tip sheets and how-to manuals; go over syllabi of investigative reporting courses; and synthesize insights from the communication science and economics of information literatures. The triangulation of these different methods produces three sets of insights. First, this Article establishes that legal sources matter: in today’s information environment, court documents, depositions, and regulatory reports are often the most instrumental sources of accountability journalism. Second, the Article identifies how and why legal sources matter: they extract quality information on the (mis)behavior of powerful players in a credible, libel-proof manner. Finally, recognizing the function of law as source opens up space for rethinking important legal institutions according to how they contribute to information production. In the process, we get to reevaluate timely debates, such as the desirability of one-sided arbitration clauses, which have been at the center of recent Trump Administration orders and Supreme Court decisions.
Jurors receive little guidance in determining awards for pain and suffering and punitive damages. Consequently, these awards are notoriously unpredictable, undermining the law’s objectives and causing a wide range of harms. Among the methods that have been proposed for addressing the unpredictability of such awards is the use of information regarding awards in comparable cases (“prior-award information”) as guidance for award determinations. This paper reports and interprets the results of a factorial experiment designed to test the effects of prior-award information at different levels of bias, variability, and form of presentation on the magnitude, spread, and accuracy of awards for pain and suffering and punitive damages. The paper examines juror behavior in response to prior-award information, and interprets whether such information can be expected to improve awards under a robust set of conditions. In summary, the data provide strong evidence that prior-award information improves the accuracy of awards (as defined) and that its beneficial effect on the dispersion of awards generally dominates any distortion, or bias, caused by the information. Furthermore, the data provide evidence that triers of fact respond to prior-award information as predicted in recent literature, and in line with the “optimal” use of such information.
An unlikely statutory candidate has recently emerged to aid the federal prosecution of state and local public corruption: the criminal civil rights statutes. In the wake of newly placed limitations on other sources of criminal liability in this area, the government's reliance on these statutes may increase in the future. Given the contentious nature of the debate concerning the Justice Department's role in prosecuting both public corruption and civil rights crimes, the potential employment of this old statutory tool in a new area deserves more considerable attention. While a great deal of scholarship focuses on the qualified immunity doctrine surrounding 18 U.S.C. § 1983, very little study has been devoted to its criminal cousins, 28 U.S.C. §§ 242 and 241. This essay canvasses the rare but storied employment of the criminal civil rights statutes in a variety of contexts, and the doctrinal confusion surrounding them. It ultimately answers the questioned posed in its title in both the affirmative and the negative. While § 242 might present a viable candidate for targeting public corruption, § 241 presents ubstantial constitutional concerns if used in this context.
Deepening racial and socioeconomic segregation is producing unequal educational outcomes at the K-12 level, outcomes that are then reproduced in higher education. This is particularly true as rising competition among colleges has led many of them to focus increasingly on measures of merit that correlate with income and as parents and students adjust their behavior in light of those metrics. While existing affirmative action programs at colleges provide some counterweight to this dynamic, they are limited by institutional (and constitutional) constraints. Out of concern for revenue and rankings, many colleges are constrained in the number of students from low-income backgrounds they are willing to admit. Such a limited scope is not inevitable, however. If colleges were to give a substantial admissions bonus to applicants who had attended K-12 schools with at least a certain percentage of low-income students, higher education could become a force for countering inequality at the K-12 level, instead of reproducing it. College admissions policies serve as a crucial reference point for parents, students, and educators on down through K-12. By rewarding applicants for attending socioeconomically integrated schools, colleges would mobilize the resources of private actors across the country towards integration. The benefits of this would be significant, especially for students from low-income families who would have an increased chance of attending integrated K-12 schools as a result. Such a policy would also help colleges better foster diversity on campuses, as more students would have had prior experience in integrated settings. This Note explores the ongoing problem of K-12 re-segregation, argues that by adopting this policy colleges could work to promote integration, examines how such a policy could best be designed to do so, and addresses why such a policy would be constitutional. At a time when educational inequality is on the rise, there is an urgent need for new affirmative action proposals that can combat segregation and do so within colleges’ existing constitutional and institutional constraints. The policy proposal advocated in this Note would do both, interrupting key elements of the present vicious circle.
1 . Free agents can set their own schedules, work from home, work only part-time, and avoid the less savory aspects of corporate culture, such as office politics, harassment, and hierarchies. Nina Munk, The Price of Freedom, N.Y. TIMES, Mar. 5, 2000, §6 at 52. See also Edward Lenz, Contingent Work Dispelling the Myth, 52 Wash. & Lee L. Rev. 755 (1995) (arguing that contingent work serves employee interests in flexibility, getting started in the job market, and providing a bridge between job loss and new employment). Michael Lewis, The Artist in the Gray Flannel Pajamas, N.Y. TIMES, March 5, 2000, §6 at 45; see generally Daniel Pink, Free Agent Nation, FAST COMPANY, Dec. 1997, at 131 . Evidence of the appeal of this free-agent trend can be found in recent mass media coverage, such as this March 5, 2000, issue of the New York Times Magazine entirely devoted to the new free-agent lifestyle.
American states have underinvested in infrastructure, education, and public welfare for decades. While the growing costs of certain state programs have accounted for part of the problem, stagnant and more volatile tax levies have also contributed to the lack of funds for public services. Surprisingly, however, scholars have devoted little attention to the latter problem. This Note begins to fill that void by proposing a new research agenda.
In the 1940s and 1950s, the administrative state served as a powerful engine of discrimination against homosexuals, with agency officials routinely implementing anti-gay policies that reinforced gays’ and lesbians’ subordinate social and legal status. By the mid-1980s, however, many bureaucrats had become allies, subverting statutory bans on gay and lesbian foster and adoptive parenting and promoting gay-inclusive curricula in public schools. This Article asks how and why this shift happened, finding the answer not in legal doctrine or legislative enactments, but in the professional norms of social workers and other bureaucrats working in the administrative state.This Article explores how changing psychiatric conceptions of homosexuality drove this legal transformation in unexpected ways, focusing on developments in criminal and family law. It traces these scientific evolutions and their impact on law through studies of sexual psychopath statutes, sodomy laws, custody cases, adoption and foster care legislation, and school curricular regulations. By the mid-1980s, mental health organizations had become vocal supporters of gay and lesbian rights, which resulted in bureaucrats undermining laws that contravened their professional judgment on these issues. The influence of professional norms on bureaucrats is not just a recent historical phenomenon, but continues today with transgender student bathroom access rights and custody cases involving BDSM practitioners. This history reveals the powerful influence of professional norms on the implementation of law. It also sheds new light on how the executive branch is an important site of legal norm formation and highlights the dynamic role of administrative bureaucracy. As this Article explains, this mechanism of legal change has significant normative implications: civil servants are hired for their professional expertise, yet are also responsible for complying with potentially opposing legislative mandates, a conflict that raises complicated governance questions.
One of America's greatest education policy problems is that schools and districts with large minority populations tend to have less experienced, less effective teachers than do wealthier and whiter schools. Our most up-to-date education legislation has failed to mitigate this problem – but an older education law may yet succeed. The Department of Education recently determined that Title VI of the Civil Rights Act, which forbids discrimination in resources by federally funded programs, covers teacher quality. This Note explores the mechanics of applying Title VI to teacher quality, and identifies both doctrinal and legal-policy pitfalls of this strategy. It argues that, if applied properly, Title VI could provide a sorely needed means of improving education for minority students.
Entomophagy — the practice of eating insects — has the potential to help meet the demand for human food and address food insecurities in an environmentally sustainable manner. The realization of the potential of insects as food, however, is not without its challenges. These challenges include the lack of regulation specifically addressing insects as food and the stigma towards the use of insects as food. While the United States Food and Drug Administration (FDA) has devoted significant attention to insects as defects in human food, it has given comparatively little attention to insects as human food. The insect food industry in the United States, while still limited, is growing, as is the number of packaged foods offered for sale that intentionally incorporate insects. This Article critically examines FDA’s regulation of insects in the context of food, including its regulation of insects as defects, insect-derived products, and insects as food or a component of food. To date, FDA’s regulation of insects as food has been largely characterized by inaction. This Article argues that in light of the substantial law categorizing insects as “filth” under the Federal Food, Drug, and Cosmetic Act (FDCA) and FDA’s extensive regulation of insects as filth, this inaction is not neutral and FDA should affirmatively and unambiguously recognize that insects used as food are “food” under the FDCA. FDA should also develop a test to distinguish between insects as food and insects as filth and should consider using intent to distinguish between insects as food and insects as filth. This Article suggests that culturally, insects are not commonly considered food in the United States, in part because FDA has generally regulated insects as filth. By recognizing insects as food, FDA may help to facilitate greater cultural acceptance of the use of insects as food.
