Education Inequality During COVID-19: How Remote Learning Is Widening the Achievement Gap and Spurring the Need for Judicial Intervention

Remote learning during the COVID-19 pandemic (COVID-19) disrupted nearly every student’s life and will cause immense learning losses. Low-income students and students of color are the most likely to be in online classes, yet the least likely to have necessary resources to succeed in a remote school environment. Studies show that the COVID-19 pandemic has and will continue to worsen the racial and socio-economic achievement gap in education. As a result, two groups of parents in California filed class action lawsuits alleging that the State of California and the Los Angeles Unified School District respectively failed to provide a basic education to students of color in impoverished neighborhoods since the school closures in spring 2020. Following the United States Supreme Court’s seminal ruling in Brown v. Board of Education in 1954, education litigation has slowly progressed under State constitutions towards recognizing an affirmative duty for States to provide a free and equal education. The Supreme Court’s decision in San Antonio Independent School District v. Rodriguez in 1963 solidified that the federal Constitution does not guarantee an equal public education for all citizens. As such, since the federal Constitution does not guarantee the right to public education, but all state constitutions do, the citizens of California and other states must use their state constitution to enforce the constitutional guarantee of a free and equal education. During the Pandemic, California’s remote learning plan has disproportionately affected low-income students of color, while privileging students in wealthier districts. This Note contends that both class action complaints sufficiently allege an equal protection violation, spurring the need for judicial intervention, and providing a model for future litigants in other states. The courts, therefore, should advise the legislature to adopt a plan that accounts for the lost learning time and ensures the most disadvantaged students receive a meaningful education during and post COVID-19

Designing an Americans with Abilities Act: Consciousness, Capabilities, and Civil Rights

The Americans with Disabilities Act (ADA) is a seminal piece of legislation aimed at protecting those with disabilities from discrimination. The ADA, however, has not been consistently able to integrate people with disabilities successfully into society. With a specific focus on individuals with serious brain injuries, this Article aims to provide insight into the shortcomings of the ADA, specifically focusing on lackluster enforcement of the legislation and its failure to incorporate promising new technologies. These limitations of the ADA are made even more clear in light of the evolution occurring in the understanding of rights and capabilities. As such, the time has come for a new piece of legislation that fully incorporates the advanced technology available to individuals, while promoting a more positive understanding of advancing rights and capabilities. The proposed Americans with Abilities Act (AWAA) will correct the deficiencies in the ADA, ultimately allowing individuals with disabilities to integrate more fully into society

Judicial Solidarity?

We are living in a moment where open and principled resistance to law and legal order are a part of our daily lives. Whether in support of Black Lives Matter or in opposition to mask mandates, people are in the streets resisting. Over the last decade, the perception of the fixity of our legal order has eroded and so, too, has the stability of our consensus that legality and morality are aligned. In this moment, the visibility and viability of resistance to law and civil government through social movements have surged. With the increasing salience of civil resistance resurfaces an old question: can (and should) judges seek to stand in solidarity with movements engaging in civil resistance? The classic answers to this question take two forms. Judges should either enforce the law and punish the civil resister, or, if they cannot do so in good conscience, they should resign. These answers position the judge outside of and aloof from the political and social struggles that the resisters represent. It follows from this aloof position that judges cannot be in solidarity with civil resistance aimed at legal change in their official capacity. This Article questions the stability of the mainstream conclusion. By focusing my attention on judicial responses to civil resistance against the Fugitive Slave Law of 1850, I return to one of the most influential sources of our collective sense of judicial capacity for political resistance. Through my own original archival research, I revisit Robert Cover’s conclusions about judicial timidity in Justice Accused. Against extensive evidence confirming Cover’s bleak view, I expose and examine one judge’s contrary argument. That judge, Ebenezer Rockwood Hoar, was a neighbor and friend of Henry David Thoreau, and he wrote in conversation with, not against, the strident views of the famous advocate of civil disobedience. Hoar proposed that a judge in sympathy with civil resistance should enforce the law in order to effectuate the power of the resistance. He argued that making Thoreau’s theory of change work required sympathetic judges to enforce the law to expose its injustice. From this colloquy between judge and activist, I draw the beginnings of a counternarrative of how judges may strive towards (if not achieve) solidarity with resistance movements. Judges, like any other institutional actor, have the capacity and perhaps the obligation to be strategic about how they act within and against the social movements that find their ways into their courtrooms

Toxic Promises

Sellers often make manipulative and dishonest claims about their products and services. Such claims, which are more likely to be present in oral interactions, substantially influence consumers’ choices. We term these claims “toxic promises.” This Article argues that the law currently underestimates, and does not properly respond to, the social harms that toxic promises generate. Insights from behavioral ethics suggest that even ordinary, law-abiding sellers can frequently make such manipulative assertions. At the same time, contracting realities might lead consumers to rely heavily on these toxic promises. When consumers discover that they have been manipulated, it is often too late: precontractual oral representations are either dismissed by courts as puffery, qualified by sellers in the unread fine print, or extremely challenging to prove. Against this background, we call for tighter scrutiny of sellers’ oral promises. We propose a spectrum of ex ante measures that regulators can utilize to monitor firms’ sales personnel training. We also suggest various means to make firms liable for oral misrepresentations made by their employees. Next, we recommend that courts adopt new analytical frameworks to mitigate toxic oral promises and restrict the enforceability of merger and integration clauses that purport to disclaim them. In making these recommendations, we illustrate how a clever mix of ex ante prevention tools and ex post liability measures may yield a more honest and efficient market environment

Plurality Decisions and the Ambiguity of Precedential Authority

The Supreme Court sometimes decides cases without reaching a majority-supported agreement on a rule that explains the outcome. Determining the precedential effect of such plurality decisions is a task that has long confounded both the Supreme Court and the lower courts. But while academic commenters have proposed a variety of frameworks for addressing the problem of plurality precedent, little existing commentary has focused on a deeper and more fundamental question—namely, what makes plurality precedent so confusing? Answering this question is not only critical to developing a more coherent and administrable doctrine of plurality precedent but is also a useful prism through which to examine our shared understanding of precedential authority more generally. This Article argues that plurality decisions are so confusing because they expose a latent ambiguity in our law of precedent. Looking to the debates surrounding plurality precedent reveals at least three distinct—and to some extent, mutually inconsistent—models of precedential authority. The first of these models, the “judgment model,” is closely connected to the traditional common law view, which grounds the precedential authority of judicial statements in the ability of those statements to explain the particular judgment issued by the court in the case before it. The second model, the “prediction model,” views the holding of a case as the rule that best predicts the future behavior of the court based on the expressed views of the participating judges. Finally, the “pronouncement model” focuses on the judiciary’s law declaration function, viewing all majority-endorsed legal rules as entitled to precedential force regardless of their connectedness to the court’s judgment or their capacity to predict the court’s future behavior. Exposing the ambiguities inherent in plurality precedent does not provide a clear answer to how the conflict among the competing models should be resolved. But doing so may help eliminate some of the conceptual confusion that has grown up around plurality precedent. In particular, focusing on the underlying theories of precedential authority that drive the various approaches to plurality precedent suggests that some of the most widely accepted approaches that have been embraced by lower court judges may lack a coherent justification in any plausible model of precedential authority. Recognizing the underlying ambiguity can also help to expose potential connections to other, seemingly unrelated doctrinal areas that may be affected by changes to the doctrine surrounding plurality precedent

Doing Away with Disorderly Conduct

Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language. Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people. Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order. Although courts and scholars have criticized these laws for decades, none have explicitly called for their abolition. This Article does so. The Article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict. Amidst a growing national reckoning over the crisis of abusive and discriminatory policing, this Article provides a timely critique of the criminal laws that empower such policing. It uses disorderly conduct laws as a lens through which to examine the extraordinary costs of overcriminalization and the vulnerable people who most often bear the brunt of such costs. Although disorderly conduct laws are not the only criminal laws legislatures should consider eliminating, they are both constitutionally and socially problematic to a degree few other criminal laws achieve

The PrEP Penalty

Pre-exposure prophylaxis, or PrEP, is a novel treatment shown to be highly effective in preventing HIV infection. Although this preventive measure signals a new dawn in eliminating HIV/AIDS, this Article exposes the paradoxical legal treatment of PrEP. On one hand, PrEP has been approved by the FDA, endorsed by the CDC, and promoted through financial incentives in the Affordable Care Act. On the other, the FDA restricts PrEP users, predominately sexually active gay men, from donating blood through a legal policy known as the “blood ban.” This Article uses an innovative experimental study to demonstrate counterintuitive and illogical responses to gay men’s use of PrEP. Study participants were found to be more reluctant to accept blood from a potential gay donor taking PrEP, or to change the FDA policy to allow that donor to donate blood, as compared with a gay donor not taking PrEP. Likewise, participants were more reluctant to receive blood from gay fathers on PrEP than from gay fathers not on PrEP. This PrEP penalty applied only to gay donors; participants were more inclined to accept a blood donation from a straight donor on PrEP compared with any gay donor. The findings demonstrate how decisions related to public health, on the structural and individual levels, are colored by moral judgment. They show how legal discourse strips away the public health benefits of medical treatment and shifts focus to the patient’s individual behavior, a process I call “the demedicalization of preventive measures.” The findings also contribute to the understanding of the expressive function of the law, meaning the ways in which the law constructs identities and how it shapes common understandings about sexual minorities in the area of public health. Furthermore, the findings advance empirical knowledge and understanding of the social meanings of same-sex marriage, parenthood, and queer families post-Obergefell v. Hodges. Public perceptions of morality and trustworthiness result in the penalization of PrEP use to the detriment of both LGBTQ individuals and society as a whole. Stigmatized attitudes hamper major public health projects, including fighting chronic blood scarcity, increasing the pool of donors that could give antibodies during a pandemic, and eliminating HIV. Expanding upon the findings from this experimental study, I offer normative avenues to eliminate PrEP stigma and further public health goals, arguing for reforming FDA policy to specifically allow PrEP users to give blood and, ultimately, for completely abolishing the blood ban

Disaster Vulnerability

Vulnerability drives disaster law, yet the literature lacks both an overarching analysis of the different aspects of vulnerability and a nuanced examination of the factors that shape disaster outcomes. Though central to disaster law and policy, vulnerability often lurks in the shadows of a disaster, evident only once the worst is past and the bodies have been counted. The COVID-19 pandemic is a notable exception to this historical pattern: from the beginning of the pandemic, it has been clear that the virus poses different risks to different people, depending on vulnerability variables. This most recent pandemic experience thus provides a useful vantage point for analyzing vulnerability. Drawing on empirical data from the pandemic and experiences from past disasters, this Article identifies and discusses the policy implications of three dimensions of disaster vulnerability: the geography of vulnerability, competing or conflicting vulnerabilities, and political vulnerability. First, it explores the geography of vulnerability, using statistical analysis and geographic information system (GIS) mapping. The Article presents an innovative COVID-19 vulnerability index that identifies the country’s most vulnerable counties and the leading driver of vulnerability for each county. It demonstrates how this index could have informed voter accommodations during the 2020 elections and mask mandates throughout the pandemic. The Article also shows how, going forward, similar modeling could make disaster management more proactive and better able to anticipate needs and prioritize disaster mitigation and response resources. Second, this Article explores competing or conflicting vulnerabilities––situations where policy-makers must prioritize one vulnerable group or one aspect of vulnerability over another. To illustrate this, it considers two other policy challenges: school closures and vaccine distribution. Finally, the Article explores political vulnerability, analyzing how disasters make already-vulnerable groups even more vulnerable to certain harms, including political neglect, stigmatization, disenfranchisement, and displacement. In sum, this Article draws upon the costly lessons of COVID-19 to suggest a more robust framework for policy-makers to assess and respond to vulnerability in future disasters

Virtual Annual Meetings: A Path Toward Shareholder Democracy and Stakeholder Engagement

From demanding greater executive accountability to lobbying for social and environmental policies, shareholders influence how managers run modern companies. In corporate doctrine, the principal venue reserved for shareholders to influence and engage with management and each other is the annual shareholders meeting. Historically, the annual meeting was a vibrant forum for shareholder democracy and occasionally even a platform for debating pressing social issues. For decades, however, the role of the annual meeting in corporate governance has been in decline, resulting in today’s largely pro forma annual meetings. This Article explores how technological integration can resurrect the annual meeting as the deliberative touchstone of shareholder democracy it once was and open new avenues for engagement. The widespread use of virtual annual meetings in response to COVID-19 provides an opportunity to re-envision the practice and purpose of the annual meeting. If structured properly, virtual meetings can re-engage historically absent shareholder demographics while maintaining the efficiencies of proxy voting. Additionally, virtual meetings can serve as a vehicle through which companies can begin to address environmental, social, and governance (ESG) issues and heightened public expectations that companies will meaningfully engage with their varied stakeholders. This Article makes three key contributions to the existing literature. First, it provides a detailed account of state reactions to COVID-19 and of the impact that the transition to virtual meetings had on shareholder voting. Second, it describes how annual meetings have drifted away from their democratic function. Finally, this Article argues that technology can revive shareholder democracy and bolster ESG efforts by facilitating retail shareholder and corporate stakeholder engagement, and underscores how virtual meetings can meet these important goals