We(ed) Hold These Truths to be Self Evident: All Things Cannabis Are Inequitable

Current approaches to social equity in the cannabis industry continue to fail to promote racial equity while simultaneously exacerbating gender, environmental, and other inequities. To better understand the structural dynamics underlying this phenomenon, I first present a multi-disciplinary recounting of not only the racial inequities, but also the stigma, business, research, energy, sex and gender, hemp, and international inequities of the War on Drugs. This serves as the foundation for a compilation of the structural and theoretical reasons for how current social equity policies, whether targeting the cannabis industry, community reinvestment, social justice, or access equity, will only continue to fail to address the inequities they target. In short, state licensing processes, managed market dynamics, and natural characteristics of the industry conspire to undercut states’ attempts to address social inequity solely by reserving limited numbers of “social equity licenses.” State community investment programs to address inequities are funded by taxes on the populations they are intended to help, and industry-led initiatives are treated as marketing campaigns. Retroactive pardons and expungement are routinely underfunded, hobbled by technical issues, unused by beneficiaries, and insufficiently comprehensive to provide effective resentencing solutions, all while states maintain arbitrary criminalization limits that continue to exacerbate inequity. Finally, direct cannabis regulations remain only tangentially associated with the employment, child custody, housing, insurance, bankruptcy, environmental, and medical research issues presented by the ongoing criminality of cannabis, and the associated inequities remain unaddressed by cannabis regulatory regimes to the ongoing detriment of those most negatively impacted by the War on Drugs

Less Litigation, More Business Purpose: Leveraging Dispute Prevention to Preserve Business Relationships

Strong interorganizational relationships play an essential role in business relationships. Soft skills associated with negotiation and communication are key to dealing with disagreements in these relationships. However, many companies do not invest in these aspects of their business relationships until conflicts arise. Dispute resolution provides helpful processes for managing these disputes, but companies can avoid conflict before it arises by investing in dispute prevention. Dispute prevention represents a change in the existing paradigm, yet it poses numerous benefits. By implementing a dispute prevention mechanism, such as a Standing Neutral, companies can invest in strong interorganizational relationships and improve their ability to flexibly respond to changing circumstances, allowing them to save time and money while maintaining focus on their business purpose

The Cruel and Unusual Punishment of Prison Rape: Why the Prison Rape Elimination Act Failed and How to Fix It

Recent studies show the rate of sexual abuse endured in prisons has been steadily increasing. To remedy this issue, the Prison Rape Elimination Act was passed in 2003, however it has had no legitimate impact on the rate of sexual abuse in prisons due to the absence of mandatory rules upon prisons and a private right of action. This note will argue that prison rape is an Eighth Amendment violation but is not punished as one and that the Prison Rape Elimination Act failed to provide Survivors of prison sexual abuse with any legitimate recourse against violators of the law. This note will outline Supreme Court precedent relating to sexual abuse and the rights of prisoners, the law of Eighth Amendment violations, the current state of prison sexual abuse, and the ways in which the current version of the Prison Rape Elimination Act fails. It concludes with a revised version of the Prison Rape Elimination Act showcasing the major changes that should be made

Failing to Learn the Lessons of Madoff: Problems with Applying Iqbal to Fraud Claims

The Iqbal standard requires all civil actions filed in federal courts to provide detailed proof at the pleading stage for the claim to proceed. Under this standard, cases are adjudicated without the aid of discovery or deposition of witnesses. Cases are decided at the pleading stage based on the documents and statements provided by the one accused of fraud. The tools to uncover deception are not available at this stage. This article argues that the Iqbal pleading standard fails to allow civil courts to adequately detect and adjudicate fraud claims. This article explores fraudulent financial schemes, the Iqbal standard, the standard of plausibility, and the requirement of proof at the pleading stage. This article then analyzes the problems presented by Iqbal when applied to cases of financial fraud. Finally, this article discusses how, rather than learning from the mistakes of the SEC in the Madoff investigation, our civil court system created a framework for adjudication of fraud cases that generates the same risk for misevaluation as was present during the Madoff investigation. This risk for misevaluation is still present because of the courts’ typical process of accepting the words of those accused of fraud, rewarding the falsification of records, misplacing its assessment of credibility, and making determinations based on limited records. Given the problems associated with adjudicating fraud claims under the Iqbal standard, a review of the Iqbal standard is essential to provide victims of fraud with proper recourse and justice

Spring 2024 Newsletter: The Docket

Link to the Spring 2024 issue of the UMass Law Library Newsletter, The Docket

Privacy or Safety? The Use of Cameras to Combat Special Ed Abuse

Self-contained classroom students face abuse from educators at disproportionate rates compared to general education students. To combat the abuse, several jurisdictions, including Massachusetts, have proposed or enacted bills enabling cameras to be placed in self-contained classrooms. This has sparked privacy concerns, particularly regarding whether the usage would amount to an infringement on the Fourth Amendment rights of students and educators. This note argues that surveillance is an ineffective deterrent to prevent violent and abusive behavior and should not justify bypassing potential privacy and constitutional violations. It outlines the relevant case law regarding students and teachers and apply these standards to the context of the self-contained classroom. Additionally, it examines the potential policy considerations relating to surveillance usage

We(ed) the People of Cannabis, in Order to Form a More Equitable Industry: A Theory for Imagining New Social Equity Approaches to Cannabis Regulation

States increasingly implement “social equity” programs as an element of new cannabis regulations; however, these programs routinely fail to achieve their goals and frequently exacerbate the inequities they purport to solve, leaving inequitable industries, high incarceration rates, and broken communities in their wake. This ineffectiveness is due to the industry’s fundamental confusion of the modern, individualized concept of “equity” with the historical, society-level concept of “social equity.” In this paper, I develop a new theory of “cannabis social equity” to integrate these concepts, and I apply that theory, first, to diagnose why current policies fall short and, second, to propose a new approach to social equity that can remedy the inequities in both the emerging industry and in the populations most adversely affected by the War on Drugs. Through a historiography of the definition of social equity in the cannabis industry, I show how legislators, regulators, advocates, and scholars built the modern definition of social equity by replacing the rich, process-based theories of racial, social, and restorative justice with a narrow set of policies crafted more for narrative resonance than effectiveness. As I argue in a companion article published in the Fall 2023 issue of the University of Massachusetts Law Review, these policies will continue to fail to improve equity in the new industry, bring equitable justice to the previously incarcerated, redistribute resources to inequitably impacted communities, and provide equitable access to cannabis. In contrast, the field of public administration developed the original theory of social equity in the 1970s to provide a philosophical foundation and process for using the mechanisms of program administration and public participation to address societal inequities, not just those inequities created explicitly or implicitly through policy implementation. I extend the traditional theory to include a legislative component that broadens potential solutions by centering the development of cohesive regulatory schema rather than individual policies. I apply the new theory to produce a novel solution that uses the level of legalization as an organizing principle for legislation inpursuit of both implementation equity in the new industry and societal justice for the victims of the War on Drugs. For if all we ask for is equity, there will never be justice

No-Injury and Piggyback Class Actions: When Product-Defect Class Actions Do Not Benefit Consumers

Class counsel are more frequently filing product-based class actions that, whether successful or not, offer few practical benefits to real consumers or class members. These no-benefit class actions cause the unnecessary expense of the courts’ time and resources, and they often fail to provide actual value to class members while still producing substantial attorneys’ fees. This article explores why strategic vagueness in plaintiffs’ filings and a lack of vigorous analysis by the courts have allowed no-benefit class actions to unnecessarily consume court resources. The article concludes by offering suggestions for how courts can alleviate some of this pressure, primarily by requiring judges to follow and enforce Federal Rules of Civil Procedure Rule 23(b)(3) as the rule was written and intended

Write Before You Watch: Policies for Police Body-worn Cameras That Advance Accountability and Accuracy

In the wake of high-profile killings and abuse by police officers over the past few years, the public has come to expect that officers will be equipped with body-worn cameras (BWCs). These cameras capture and preserve encounters between police and civilians, and the footage they record often becomes critical evidence in criminal, civil, or administrative proceedings. Reformers believe BWCs can improve police accountability, build public trust in police, and potentially reform police behavior.Considering the reliance on BWCs, a key question has emerged: should officers be allowed to review BWC footage before preparing a report or giving a statement, or only after doing so? The question comes as policymakers across the country, from the White House to local municipalities, are attempting to reform criminal justice policy. Given that police departments design their internal policies, it is perhaps unsurprising that most of the nation’s largest police departments using BWCs permit their officers, in most instances, to view the footage before writing an incident report. But this policy has profound negative consequences, both for the accuracy of police reports and the potential for police accountability. As cognitive science recognizes, an officer’s memory of an incident is susceptible to being altered by details in BWC footage that the officer may not have noticed or remembered. These differences could be legally and factually significant. Moreover, permitting officers to view BWC footage before writing their reports undermines public confidence that officers will be truthful in memorializing their own perception of events. Access and exposure to the footage creates the appearance, if not the likelihood, that an officer will conform their report to match the recording.Police departments should instead adopt a “write first, then watch” policy. This approach fulfills two objectives: first, it memorializes the officer’s unaltered recollection, preserving the officer’s state of mind at the time of the event; second, it assures transparency by denying a percipient witness to an event access to other evidence in a case before they have memorialized their own recollection of events. Under this policy, officers would be permitted to write supplemental reports only after viewing BWC footage, for the purpose of providing additional details or explain why their recollections differed from the footage. Each report would be distinguishable, eliminating any concern that the footage would affect the officer’s initial report. This procedure ensures accuracy and accountability in an adversarial system

Determining What’s Not Obvious: Should a Reasonable Expectation of Success Invalidate Patent Applications?

Patents are necessary to incentivize innovation because they grant owners the right to protect inventions. To be patentable, an invention must be useful, it must be novel, and it must not be obvious. But the judiciary has struggled to apply the latter requirement, non-obviousness, particularly for highly technical innovations subject to FDA regulations. For these innovations, the progression through the regulatory jungle can take ten to twenty years and millions of dollars (2.6 billion for a pharmaceutical drug). The complexities of the regulatory process can also render an innovation unprotected by patent rights because, by the end of the process, the patent office may determine that the invention is “obvious” as a direct consequence of the process itself. But rendering inventions unpatentable merely because they show a reasonable expectation for success goes against the public interest. Because of the changing landscape of the path to the public domain and significant disincentives in regulated technologies, incentivizing innovation requires a reinterpretation of the obviousness standard