Labor’s New Localism

Millions of workers in the United States, disproportionately women, immigrants, and people of color, perform low-paid, precarious work. Few of these workers can improve their workplace standards because the National Labor Relations Act (“NLRA”) does not sufficiently protect their right to form unions and collectively bargain. Lacking sufficient influence in federal and state government to strengthen labor and employment law, unions and worker centers have increasingly sought to build power in cities. The shift to local labor lawmaking has delivered local minimum wage, paid sick leave, and fair scheduling ordinances covering millions of low-wage workers, as well as groundbreaking unionization and collective bargaining agreements, including in regions of the United States historically hostile to unions. This has positioned cities as a primary staging ground for labor law reform.

This Article examines this trend as a rejuvenated labor localism and this trend’s effects on state and local government law and labor and employment law. Labor localism advances the democratic values of labor and local law by channeling worker and community protests and bargaining through the direct democracy mechanisms of cities, instead of or in addition to the NLRA. While provoking fierce employer campaigns seeking state preemption of local lawmaking, labor localism can often manage these state-local conflicts by engaging in state law reform and pivoting to adjacent areas. Modest home rule reform can improve its stability and reach and, contrary to conventional wisdom, improve local accountability. Labor localism, finally, reveals the central roles of localism in enabling a bottom-up reform effort to counteract the weaknesses of federal labor law and in safeguarding democratic norms in the United States.

* Associate Professor, University of Miami School of Law. The author would like to thank Kate Andrias, Jennifer Breen, Richard Briffault, Scott Cummings, Nestor Davidson, Catherine Fisk, Kati L. Griffith, Patrick Gudridge, Laura Huizar, César F. Rosado Marzán, Joseph McCartin, Michael Oswalt, Richard Schragger, and Jocelyn Simonson for their insightful comments on an earlier draft, and Andrew Denny, Shanzay Pervaiz, and the Southern California Law Review editors for excellent research assistance. This project also benefitted from feedback at the 9th Annual State & Local Government Works-in-Progress Conference, the 2020 Southeastern Association of Law Schools Conference, and the University of Miami School of Law Legal Theory Workshop. All errors are the author’s.

Detention, Disenfranchisement, and Doctrinal Integration

On any given day, approximately 2.3 million individuals are incarcerated, many of whom are eligible voters and are disproportionately people of color.[1] The majority of state and local governments do not affirmatively provide incarcerated voters with special accommodations to ensure that they are able to exercise their right to vote, leaving many effectively disenfranchised. What is the constitutional harm to these persons: Is the harm the denial of the right to vote, which society owes to every eligible citizen? Or the failure of the duty of care that the state owes to every prisoner in its charge? Is the constitutional harm the denial of Fourteenth Amendment equal protection? Or the imposition of Eighth Amendment cruel and unusual punishment? Or is it somewhere in between, or in some sense, all of these? Controlling Supreme Court jurisprudence approaches this question through a limited standalone application of the Equal Protection Clause. This Article revisits the controlling interpretation of the right to vote in jails and develops an alternative interpretation that integrates the Due Process Clause and Equal Protection Clause to fully account for the liberty-based harms specific to incarcerated voters. At the core of the current interpretation lies a fundamental misconception that fails to recognize both the profundity and centrality of the right to vote and the inequalities between incarcerated and non-incarcerated individuals. For detainees, an interpretation integrating substantive due process and equal protection might clarify the contours of the state’s obligation to ensure protection of this fundamental right.


           [1].       Press Release, Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Pol’y Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://
perma.cc/Z7G2-FASF]; Chris Uggen, Ryan Larson, Sarah Shannon & Arleth Pulido-Nava, Sent’g Project, Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction 8 fig.1 (2020), https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/#III.%20Disenfranchisement%20in%202020 [https://perma.cc/8DTP-KNDC] (indicating that 25% of people in prison are disenfranchised).

* Assistant Professor, University of Baltimore School of Law. I would like to sincerely thank Aderson B. Francois, Deborah Epstein, Robin West, Colin Starger, Michele Gilman, Lisa Iglesias, Brandon Garrett, and Brandon Figg for their insightful comments and suggestions. Thanks also to the participants of the NYU Clinical Writer’s Workshop and Mid-Atlantic Clinical Writer’s Workshop for their invaluable feedback on early drafts. I am also immensely grateful for the research support provided by three brilliant students I had the pleasure of teaching while serving as a fellow in the Georgetown University Law Center’s Civil Rights Clinic: Alexander Afnan, Rachel Guy, and Olivia Grob-Lipkis. Finally, many thanks to the editors of the Southern California Law Review for their assistance bringing this Article to publication.

Closing International Law’s Innocence Gap

Over the last decade, a growing number of countries have adopted new laws and other mechanisms to address a gap in national criminal legal systems: the absence of meaningful procedures to raise post-conviction claims of factual innocence. These legal and policy reforms have responded to a global surge of exonerations facilitated by the growth of national innocence organizations that increasingly collaborate across borders. It is striking that these developments have occurred with little direct help from international law. Although many treaties recognize extensive fair trial and appeal rights, no international human rights instrument—in its text, existing interpretation, or implementation—explicitly and fully recognizes the right to assert a claim of factual innocence. We label this omission international law’s innocence gap. The gap appears increasingly anomalous given how foundational innocence protection has become at the national level, as well as international law’s longstanding commitment to the presumption of innocence, fair trial, and other criminal process guarantees. We argue the time has come to close this innocence gap by recognizing a new international human right to assert post-trial claims of factual innocence.

* L. Neil Williams, Jr., Professor of Law, Duke University School of Law and Director, Wilson Center for Science and Justice, Duke University School of Law. bgarrett@law.duke.edu.                 

† Harry R. Chadwick, Sr. Professor of Law, Duke University School of Law and Permanent Visiting Professor, iCourts: Centre of Excellence for International Courts, University of Copenhagen. helfer@law.duke.edu.                            

‡ Clinical Professor of Law, Director, International Human Rights Clinic, Duke University School of Law. huckerby@law.duke.edu.   

          

Small Fines and Fees, Large Impacts: Ability-to-Pay Hearings

Imagine, for example, that a woman fails to have auto insurance,[1] which carries a minimum fine of $500 in Massachusetts.[2] In addition, she will be charged a $500 payment or one full year premium of compulsory insurance (whichever is larger), a $45 late fee and a $25 filing fee if she chooses to request a hearing, and a $500 fee to reinstate her license and registration after having them suspended for sixty days—for a minimum total of $1,500 with the possibility of receiving up to one year in jail.[3] She is also one of about forty-six percent of Americans who cannot cover a $400 emergency expense upfront,[4] so the legal financial obligations (“LFOs”) that she owes as part of her fine remain unpaid, making matters worse. Her driver’s license was suspended due to not paying, so she risks illegally driving to her job or taking public transportation if there is any available, which imposes further economic burdens.[5] A background check shows not only her conviction, but also that her case is still active because of the unpaid LFOs.[6] Also, the LFOs have ruined her credit, causing higher interest rates on her credit cards and loans and making permanent housing harder to find even if she could afford the rent.[7] Now there is a warrant for her arrest for the unpaid LFOs.[8] If she is picked up and jailed, she will miss her interview for a second job, lose her temporary housing, and possibly lose custody of her children.[9]

Jurisdictions across the country use fines and fees to help finance elements of their criminal justice and court systems.[10] These fines and fees are referred to as LFOs and include, but are not limited to, traffic infractions, felony-related fines, and court fees, such as filing fees, attorney dues, and transcript costs.[11] Many of these are levied regardless of one’s guilt.[12] Although some of these LFOs may be small when isolated, they impose major burdens on low-income individuals, their families, and the government.[13] This creates a “poverty penalt[y]” because these charges are imposed regardless of one’s income.[14] Excessive charges on low-income individuals create larger long-term costs as criminal justice debt can increase the likelihood of later criminal activity.[15] Thus, statutes and courts imposing these large, unpayable LFOs on indigent defendants who may or may not be convicted of a crime burdens the individuals, their families, and even governments.[16] This issue is rapidly transforming and gaining attention in courts,[17] academia,[18] and legislatures[19] with recent advocacy and legislation changes, such as the elimination of juvenile fines[20] and the abolishment of driver’s license suspension for failure to pay in some states.[21] One possible solution to this issue is to require ability-to-pay determinations (“ATP determinations”) before a court can impose LFOs on indigent criminal defendants. The California Supreme Court, in People v. Kopp, is currently determining whether courts must consider a defendant’s ability to pay before imposing LFOs, and if so, which party bears the burden of proof regarding the defendant’s inability to pay.[22]


          [1].      The most recent data from the Insurance Research Council estimates that approximately over twelve percent of the driving population, or one in eight drivers, is uninsured. David Corum, One in Eight Drivers Uninsured, Ins. Rsch. Council (Mar. 22, 2021), https://www.insurance-research.org/sites/def
ault/files/downloads/UM%20NR%20032221.pdf [https://perma.cc/HUD5-YLDN].

          [2].      Mass. Gen. Laws Ann. ch. 90, § 34J (West 2021).

          [3].      Id.; see also Mark Fitzpatrick, Penalty for Driving Without Insurance in Massachusetts,ValuePenguin (Mar. 16, 2021), https://www.valuepenguin.com/auto-insurance/massachusetts/penalti
es-driving-without-insurance [https://perma.cc/6XBN-X7XL].

          [4].      Bd. of Governors of the Fed. Rsrv. Sys., Report on the Economic Well-Being of U.S. Households in 2015, at 1 (2016) (“Forty-six percent of adults say they . . . could not cover an emergency expense costing $400 . . . .”); see also Philip Alston, Report of the Special Rapporteur on Extreme Poverty and Human Rights on His Mission to the United States of America (2018); Kathryn Vasel, 6 in 10 Americans Don’t Have $500 in Savings, CNN Money (Jan. 12, 2017, 8:21 AM), https://money.cnn.com/2017/01/12/pf/americans-lack-of-savings/index.html [https://perma.
cc/JFY4-DUSK] (“Nearly six in [ten] Americans don’t have enough savings to cover a $500 or $1,000 unplanned expense . . . .”); The Pew Charitable Trs., What Resources Do Families Have for Financial Emergencies? 1 (2015) (“One in [three] American families reports having no savings at all, including [one] in [ten] of those with incomes of more than $100,000 a year.”).

          [5].      Alicia Bannon, Mitali Nagrecha & Rebekah Diller, Brennan Ctr. for Just., Criminal Justice Debt: A Barrier to Reentry 5 (2010); see, e.g., Fares Overview, Mass. Bay Transp. Auth., https://www.mbta.com/fares [https://perma.cc/F8Q4-94ZZ] (costing $90 for a monthly “LinkPass”); Fares, Passes, and Discounts, Metro, https://www.metro.net/riding/fares [https://perm
a.cc/AP3F-2CUV] (regularly costing $100 for a thirty-day Los Angeles “Metro Rail Pass”); Everything You Need to Know About Fares and Tolls in New York, Metro. Transp. Auth., https://new.mta.info/
fares [https://perma.cc/95F7-XTLD] (costing $127 for a thirty-day “Unlimited New York City MTA MetroCard”); Unlimited Ride Passes, Chi. Transit Auth., https://www.transitchicago.com/passes [https://perma.cc/BN5U-6UZC] (costing $75 for a thirty-day “CTA/Pace Pass”); Cost to Ride, Wash. Metro. Area Transit Auth., https://www.wmata.com/fares/basic.cfm [https://perma.cc/3JGW-QTX
B] (costing $58 for a seven-day “Unlimited WMATA Pass”); Jonathan English, Why Public Transportation Works Better Outside the U.S., Bloomberg CityLab (Oct. 10, 2018, 6:00 AM), https://
http://www.bloomberg.com/news/articles/2018-10-10/why-public-transportation-works-better-outside-the-u-s [https://perma.cc/45QB-ZVX2] (comparing public transportation in the United States to that of other countries to explain America’s poor public transport system).

          [6].      Theresa Doyle, Opinion, End the Cycle of Debt for Indigent Defendants, Seattle Times (Feb. 20, 2016, 4:01 PM), https://www.seattletimes.com/opinion/end-the-cycle-of-debt-for-indigent-defendan
ts [https://perma.cc/84XM-75ED].

          [7].      Id.

          [8].      See, e.g.,Wash. Rev. Code § 10.01.180(1) (2016) (allowing arrest warrants for defaulting); Mass. Gen. Laws Ann. ch. 276, § 31 (West 2021) (allowing default warrants solely due to a person’s failure to pay a fine, assessment, court cost, restitution, support payment, or other such amount); Doyle, supra note 6.

          [9].      Doyle, supra note 6.

        [10].      See Council of Econ. Advisers, Fines, Fees, and Bail: Payments in the Criminal Justice System that Disproportionately Impact the Poor 1 (2015). In 1991, just twenty-five percent of inmates reported receiving court-ordered fines and sanctions, but by 2004, sixty-six percent did. Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor 23 (2016).

        [11].      Anne Teigen, Nat’l Conf. of State Legislatures, Assessing Fines and Fees in the Criminal Justice System 1 (2020).

        [12].      Fair & Just Prosecution, Fines, Fees, and the Poverty Penalty 1 (2017).

        [13].      Id. at 1–2.

        [14].      Rebecca Vallas & Roopal Patel, Sentenced to a Life of Criminal Debt: A Barrier to Reentry and Climbing Out of Poverty, 46 Clearinghouse Rev. J. Poverty L. & Pol’y 131, 133 (2012).

        [15].      Exec. Off. of Pub. Safety & Sec., Report of the Special Commission to Study the Feasibility of Establishing Inmate Fees 4 (2011), https://www.mass.gov/doc/report-of-the-special-commission-to-study-the-feasibility-of-establishing-inmate-fees-july-2011/download [https://perma.cc/
RK7U-GCHM]; see also Helen A. Anderson, Penalizing Poverty: Making Criminal Defendants Pay for Their Court-Appointed Counsel Through Recoupment and Contribution, 42 U. Mich. J.L. Reform 323, 372–73 (2009).

        [16].      See Council of Econ. Advisers, supra note 10, at 3–4.

        [17].      See infra Part II; e.g., Cain v. White, 937 F.3d 446, 454 (5th Cir. 2019) (finding that judges’ exclusive authority over how the Judicial Expense Fund (“JEF”), a fund that derived money from fines and fees imposed on defendants to pay for court expenses, was spent violated due process); State v. Blazina, 344 P.3d 680, 680 (Wash. 2015) (holding that Washington trial courts have an obligation to conduct an individualized inquiry into a defendant’s ability to pay discretionary and most mandatory LFOs); State ex rel. Pedersen v. Blessinger, 201 N.W.2d 778, 782 (Wis. 1972) (finding that “one who has been convicted of a crime and fined is not to be imprisoned in satisfaction of the fine or in lieu thereof if he is unable to pay the fine”); Will v. State, 267 N.W.2d 357, 360 (Wis. 1978) (encouraging but not requiring judges to consider a defendant’s ability to pay LFOs at the time of sentencing); People v. Dueñas, 242 Cal. Rptr. 3d 268, 273 (Ct. App. 2019) (finding that due process “requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes court facilities and court operations assessments”); People v. Kopp, 250 Cal. Rptr. 3d 852, 893 (Ct. App.) (agreeing with Dueñas that due process requires courts to conduct an ability-to-pay hearing before imposing criminal justice administration fees if a defendant requests such a hearing), review granted, 451 P.3d 776 (Cal. 2019).

        [18].      Organizations, such as the Fines and Fees Justice Center, Fair and Just Prosecution, Brennan Center for Justice at New York University Law School, and PolicyLink, are bringing to light the harsh impacts LFOs can have on individuals, their families, and society. See generally About Us, Fines & Fees Just. Ctr., https://finesandfeesjusticecenter.org/about-fines-fees-justice-center [https://perma.cc/6C4Y-2TCF]; Addressing the Poverty Penalty and Bail Reform, Fair & Just Prosecution, https://
fairandjustprosecution.org/issues/addressing-the-poverty-penalty-and-bail-reform
[https://perma.cc/T4Z
H-KPXF]; About Us,Brennan Ctr. for Just., https://www.brennancenter.org/about [https://
perma.cc/C4LG-68TU]; Eliminating Fines and Fees, PolicyLink, https://www.policylink.org/our-work/just-society/fines-fees [https://perma.cc/59Q9-8YC3].

        [19].      Many jurisdictions are reexamining various fines and fees. See, e.g., Ala. R. Crim. P. 26.11(b) (directing sentencing courts to consider a defendant’s ability to pay when imposing a restitution fine); A.B. 1869, 2020 Leg. (Cal. 2020) (eliminating twenty-three administrative fees in the criminal legal system); California AB 1869 Criminal Fees, Fines & Fees Just. Ctr. (Oct. 1, 2020), https://finesandfees
justicecenter.org/articles/california-ab-1869-criminal-fees [https://perma.cc/3A3F-CDEV]; H.B. 2048, 2019 Leg. (Tex. 2019) (waiving all DUI fines if a court determines a defendant is unable to pay); S.B. 1637, 2019 Leg. (Tex. 2019) (requiring deferred payment, payment plans, community service, or full or partial waivers for LFOs if a defendant is unable to pay); H.B. 1178, 2020 Leg. (Md. 2020) (requiring courts to use a formula to determine the amount that an individual can pay).

        [20].      See, e.g., S.B. 190, 2017 Leg. (Cal. 2017) (eliminating almost all juvenile court fines and fees); H.B. 36, 2020 Leg. (Md. 2020) (eliminating all juvenile fines and fees and making all such previously imposed LFOs unenforceable and uncollectable); A.B. 439, 2019 Leg., 80th Sess. (Nev. 2019) (eliminating fines and fees charged to families of criminal justice system–involved juveniles); S.B. 48, 218th Leg. (N.J. 2019) (eliminating all juvenile fines and financial penalties); H.B. 1162, 2020 Leg., 2020 Sess. (N.H. 2020) (eliminating costs of services imposed on parents of youth in the justice system); S.B. 422, 81st Leg., Reg. Sess. (Or. 2021) (eliminating fees and court costs associated with juvenile delinquency matters). See generally Jessica Feierman, Naomi Goldstein, Emily Haney-Caron & Jaymes Fairfax Columbo, Juv. L. Ctr., Debtors’ Prison for Kids?: The High Cost of Fines and Fees in the Juvenile Justice System (2016) for a discussion on state laws and a national survey that documents fines, fees, and restitution consequences for failure to pay in the juvenile justice system.

        [21].      Seventeen states, including California, Colorado, Georgia, Idaho, Illinois, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nevada, New York, Oregon, Utah, Virginia, West Virginia, and Wyoming, do not suspend driver’s licenses for failure to pay. See, e.g., Cal. Veh. Code § 13365 (West 2017) (allowing suspension for failure to appear in court, but not failure to pay); H.B. 21-1314, 2021 Gen. Assemb., 2021 Reg. Sess. (Colo. 2021) (repealing the Department of Revenue’s authority to cancel, renew, or reinstate a driver’s license for failure to pay an outstanding monetary judgment); H.B. 599, 2018 Leg., Reg. Sess. (Idaho 2018) (ending suspension); H.B. 3653, 2021 Gen. Assemb. (Ill. 2021) (ending license suspension for unpaid automated speed and red-light camera ticks and rescinding license holds and suspensions for unpaid traffic tickets and unpaid automated speed and red light camera tickets); H.B. 5846, 2020 Leg., 2020 Reg. Sess. (Mich. 2020) (stopping suspending drivers’ licenses for failure to pay in all cases unrelated to the underlying offense being public-safety related); H.F. 336, 2021 Leg. (Minn. 2021) (ending suspension); H.B. 217, 2019 Leg., Reg. Sess. (Mont. 2019) (ending suspension); S.B. 219, 2021 Sess. (Nev. 2021) (ending suspension); N.Y. Veh. & Traf. Law § 510(4-a) (McKinney 2021) (ending suspension); H.B. 4210, 80th Leg., Spec. Sess. (Or. 2020) (eliminating the imposition of driving privilege restrictions for failure to pay fine); H.B. 143, 2021 Leg., Gen. Sess. (Utah 2021) (ending the suspension of driver’s licenses solely for the nonpayment of fines); S.B. 1, 2020 Gen. Assemb., 2020 Sess. (Va. 2020) (ending suspension); H.B. 4958, 2020 Leg., Reg. Sess. (W. Va. 2020) (ending suspension); Wyo. Stat Ann. § 31-9-302 (2021) (ending suspension).  Only four states—Louisiana, Minnesota, New Hampshire, and Oklahoma—require a determination that a person had the ability to pay and intentionally refused to do so. Mario Salas & Angela Ciolfi, Legal Aid Just. Ctr., Driven by Dollars: A State-by-State Analysis of Driver’s License Suspension Laws for Failure to Pay Court Debt 8 (2017), https://www.justice4all.org/wp-content/uploads/2017/09/Driven-by-Dollars.pdf [https://perma.cc/3GKU-H2BH].

        [22].      Kopp, 250 Cal. Rptr. 3d at 852 (holding that defendants are entitled to an ability-to-pay hearing under Dueñas but that they bear the burden of demonstrating their inability to pay). This issue has also been the subject of considerable litigation in other states and will be discussed later in this Note. See infra Part II.

* Senior Editor, Southern California Law Review, Volume 95; J.D. Candidate 2022, University of Southern California Gould School of Law; B.A. Political Science 2019, California Lutheran University. Thank you to Maggie Kerkhof, Rudy Kerkhof, Nicole & Zach Grau, Delaney Kerkhof, and my dearest friends for their unwavering support and encouragement throughout my time in law school. I would also like to thank Professor Clare Pastore for her topic inspiration and guidance. Finally, many thanks to all the Southern California Law Review members for their invaluable work on my piece.

Democracy Dies in Silicon Valley: Platform Antitrust and the Journalism Industry

Newspapers are classic examples of platforms. They are intermediaries between, and typically require participation from, two distinct groups: on the one hand, there are patrons eager to read the latest scoop; on the other hand, there are advertisers offering their goods and services on the outer edges of the paper in hopes of soliciting sales. More than mere examples of platform economics, however, newspapers and the media industry play an irreplaceable role in the functioning of our democracy by keeping us informed. From behemoths such as the Jeff Bezos–owned Washington Post to outlets like the Hungry Horse News in the small town of Columbia Falls, Montana, the press lets us know what is happening on both the national and local levels. However, the age of the Internet and the corresponding emergence of new two-sided platforms is decimating the media industry.[1] In a world where more users get their news on social media platforms like Facebook than in print,[2] the survival of quality journalism depends in large part on whether the media industry can tap into the flow of digital advertising revenue, the majority of which goes to just two corporations founded around the start of the new millennium.

Facebook and Google, formed respectively in 2004 and 1998, are new types of platforms aiming to accomplish what newspapers have done for centuries: attract a large consumer base and solicit revenue from advertisers. However, unlike the fungible papers newsies once distributed hot off the presses, Facebook and Google connect advertisers and consumers in a more sophisticated, yet opaque manner. Facebook and Google are free to consumers insofar as users do not pay with money to surf the web or connect virtually with their friends. Instead, the companies collect information about users based on their online activity, and complex algorithms connect those users with targeted advertisements.[3] This new method of connecting Internet users and advertisers has been wildly successful, creating a tech duopoly profiting from nearly sixty percent of all digital advertising spending in the United States.[4]


          [1].      Throughout this Note, I refer to the journalism industry also as the “media” industry and the “news media” industry. Although there are undoubtedly nuanced differences between journalism and news media, for the purposes of this Note, I draw no distinction between them.

          [2].      Elisa Shearer, Social Media Outpaces Print Newspapers in the U.S. as a News Source, Pew Rsch. Ctr. (Dec. 10, 2018), https://www.pewresearch.org/fact-tank/2018/12/10/social-media-outpaces-print-newspapers-in-the-u-s-as-a-news-source [https://perma.cc/5MWY-RSTH].

          [3].      Although I may not be interested in an upcoming Black Friday deal for chainsaws posted in a physical publication of the Hungry Horse News, Facebook and Google are—based on my history and activity on the platforms—aware of my affinity for things like antitrust law and coffee, and so their algorithms are likely to present advertisements to me for items such as books written by Herbert Hovenkamp and expensive burr coffee grinders.

          [4].      Felix Richter, Amazon Challenges Ad Duopoly, Statista (Feb. 21, 2019), https://
http://www.statista.com/chart/17109/us-digital-advertising-market-share [https://perma.cc/4FPT-RYRV].

* Executive Senior Editor, Southern California Law Review, Volume 95; J.D. Candidate, 2022 University of Southern California, Gould School of Law. I would like to thank Professor Erik Hovenkamp for serving as my advisor. All mistakes are my own.

Life Story Rights Litigation: Negotiating for a Happy Ending

Filmmakers, television writers, and authors alike have made millions of dollars in the entertainment industry by telling stories that have already been lived by real people. Not only do these creative works force enormous public exposure upon the real people portrayed, but they often portray these real-life inspirations in inaccurate, or even harmful ways. Furthermore, without an agreement to sell their life story rights, many of these real-life inspirations receive no compensation from the use of their life story in these highly successful creative works.

* Senior Submissions Editor, Southern California Law Review, Volume 95; J.D. Candidate, 2022 University of Southern California, Gould School of Law; B.A. Communication 2017, University of Southern California. A huge thank you to the editors of the Southern California Law Review for all of your guidance throughout the publication process, and to all of my family and friends for their support throughout law school

Taxing Guns

Policymakers across the nation have recently adopted new taxes on guns. As expected, these policies are controversial. Supporters believe the taxes will increase the cost of weapons, decrease sales, and provide the revenue necessary to fund the costs of gun violence across America. Critics, by contrast, argue the taxes are nothing more than poll taxes and will drive the market for weapons underground.

Lost in the debate is the fact that gun taxes have been on the books for over a century. Congress adopted the first of such taxes during World War I to address the nation’s extraordinary wartime revenue needs. Since then, policymakers at every level of government have added more taxes, creating a capacious system of modern gun taxation in the process.

Despite the significance of guns in America and the increasing role that taxes play, no study has systematically analyzed the underlying reasons for and against the laws or, more importantly, offered a detailed framework for recognizing the rights and responsibilities of gun ownership. In this Article, we begin to fill this surprising gap in the extant literature. We review three theories of public finance and find that all provide useful ideas for improving our system of firearm taxation. We argue that one approach, however, provides the best framework for shaping gun tax policy in the future: the Pigouvian theory of taxation. We explain how and why legislators should pursue Pigouvian taxation, and we outline policies for improving the nation’s approach to taxing guns.

* Thomas Griffith is the John B. Milliken Professor Emeritus of Law and Taxation at the University of Southern California Gould School of Law.

† Nancy Staudt is currently serving as the vice president of innovation at the RAND Corporation and the Frank & Marica Carlucci Dean at the Pardee RAND Graduate School. The views, opinions, findings, conclusions, and recommendations contained herein are the author’s alone and not those of RAND, the Pardee RAND Graduate School, or its research sponsors, clients, or grantors. We would like to thank Lee Epstein, Mitu Gulati, Kim Krawiec, and participants in many workshops, including at Duke Law School, Florida International University College of Law, Missouri State University, and Washington University School of Law, for helpful comments and suggestions. We also thank Tara Katelyn for her excellent research assistance and Sara Hubaishi for her excellent “Bluebooking” skills.

Transgender Rights & the Eighth Amendment

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law. The treatment of incarcerated transgender people is no exception. Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex. But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo v. Corizon, Inc. in 2019—the first circuit-level case to require a state to provide transition surgery to an incarcerated transgender person. Other state departments of corrections will surely follow, as they must under the Eighth Amendment. These momentous changes, which coincide with a broader cultural turn away from transphobia and toward a collective understanding of transgender people, have been neither swift nor easy. But they trend in one direction: toward a recognition of the rights and dignity of transgender people.

* Jennifer L. Levi, Professor of Law, Western New England University Law School.

† Kevin M. Barry, Professor of Law, Quinnipiac University School of Law. Thanks to Shannon Minter for thoughtful advice; to the Southern California Law Review staff for editorial assistance; and to Lexie Farkash for research assistance.

Designing Supreme Court Term Limits

Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointments process, a number of academics and policymakers have put forward detailed term-limits proposals. However, many of these proposals have been silent on several key design decisions, and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court.

This Article provides a framework for designing a complete term-limits proposal and develops an empirical strategy to assess the effects of instituting term limits. The framework we introduce outlines the key design features that any term-limits proposal must make, including frequently overlooked decisions like what the default would be if there is Senate inaction on a president’s nominee. The empirical strategy we develop uses simulations to assess how term-limits proposals would have shaped the Court if they had been in place over the last eighty years of American history. These simulations enable comparative assessments of term-limits proposals relative to each other and to the historical status quo of life tenure. Using these simulations, we are able to isolate the design features of existing proposals that produce significant differences in the composition of the Supreme Court. For instance, proposals that commence appointing term-limited Justices immediately could complete the transition in just sixteen years, but proposals that wait until after the sitting Justices leave the Court to appoint term-limited Justices would take an average of fifty-two years to complete the transition. Our results also reveal that term limits are likely to produce dramatic changes in the ideological composition of the Court. Most significantly, the Supreme Court had extreme ideological imbalance for sixty percent of the time since President Franklin Roosevelt’s effort to pack the Court, but any of the major term-limits proposals would have reduced the amount of time with extreme imbalance by almost half.

          *     Professor of Law, University of Chicago Law School. J.D. 2013, Ph.D. 2013, A.M. 2012, Harvard University. M.A., B.A. Yale University, 2007.

          †     Treiman Professor of Law, Washington University in St. Louis. J.D. Harvard University 2008, A.B. Duke University 2004.

          ‡     Associate Professor of Law, Washington University in St. Louis. Ph.D., 2015, Cornell University. J.D. 2011, Washington University. B.S.E. 2008, Grand Valley State University.                  

††         Professor of Public Policy, Harvard Kennedy School. Ph.D. 2012, A.M. 2011, A.B. 2000, Harvard University. J.D. 2004, Stanford University. For helpful conversations and comments, we are grateful to Gabe Roth and participants at workshops at the University of Chicago Law School, Washington University School of Law, NYU Law School, and the American Law & Economics Association Annual Meeting.

An Empirical Study of Gender and Race in Trademark Prosecution

This Article is the first to empirically examine the extent to which women and minorities succeed in prosecuting trademark applications before the United States Patent and Trademark Office (“USPTO”). Trademark registration is an important measure of entrepreneurial activity and progress in business, education, and the arts. To explore how women and minorities are succeeding in this domain, we compared 1.2 million trademark applications over thirty years with demographic information on race and gender.             We analyze whether trademark prosecution reflects systematic underrepresentation of women and minorities similar to those reported in patent and copyright prosecution. We found that trademark data showed significant differences from the other two federal intellectual property (“IP”) regimes. Our analysis reveals that women regularly secure trademark registration at a higher rate than men. Women are underrepresented in the pool of trademark applicants compared to their presence in the population, but not all minority groups are underrepresented. For women and underrepresented minorities, the disparity is decreasing at a rate not seen in other IP registration systems.

       While recent work has significantly advanced our understanding of trademark prosecution, no published studies consider the race and gender of trademark applicants. By filling that void, this Article substantially contributes to our understanding of minority intellectual property ownership and provides a new foundation for policy shifts and further research to assure that intellectual property ownership paths, theory, law, and reform are grounded in equality.