Power over Procedure

American law should better protect people\u27s bodies from being caged than it should protect people\u27s money. And yet in so many ways it does the opposite. Instead of calibrating protections for defendants to the importance of the interest at stake, disparities between pretrial protections in federal civil and criminal procedure instead track differences in race and class between defendants in the two systems. Criminal defendants, for instance, can be locked in cages for two days on a mere accusation by police before a magistrate considers the validity of that deprivation. Civil defendants, by contrast, typically cannot be deprived of their property without first having a judge hear their arguments. Criminal defendants sometimes do not learn about the government\u27s evidence until the eve of or during trial-a trial that comes in scant few cases. Civil defendants would never be forced into such a trial by surprise but rather have numerous tools of formal discovery to compel evidence from the opposing party throughout the pretrial period. This Article argues that comparing federal criminal procedure to federal civil procedure across several substantive areas provides new and valuable insight into the systemic racism and classism woven into the fabric of U.S. law. Criminal defendants are disproportionately poor people of color, while civil defendants are often wealthy corporations whose executives are largely White; those wealthy civil defendants play an outsized role in developing civil procedure. Trials are scarce in both civil and criminal procedure. But civil procedure-where wealthy White defendants are disproportionately powerful-offers significant pretrial protection for defendants that makes trials less necessary. Criminal law has also made trials largely disappear but not by affording procedural protections to defendants. Rather, criminal law made going to trial much too risky for defendants. Nonetheless, instead of recognizing the lack of trials and shifting procedural protections pretrial, criminal law continues to rest its faith on mythological trials to protect defendants\u27 rights

Stealing Organs?

Every nine minutes, a new person joins a waitlist for an organ transplant, and every day, seventeen people die waiting for an organ that will never come. Because the need for organ transplants far outstrips the number of available organs, the policies and rules governing organ allocation in the United States are critically important and highly contentious. Recently, proponents of a new allocation system one focused more on sharing organs across the nation instead of allocating organs primarily to local transplant candidates have gained ground. Bolstered by two separate lawsuits in the past five years, advocates of greater national sharing have succeeded in changing the allocation rules for lungs and livers, with policies for other organs in development. This Article engages with the debate over whether national or local patients should receive priority under organ allocation systems. Focusing specifically on liver allocation, it provides an innovative empirical analysis of the primary arguments and evidence that those in favor of national allocation policies have used to support their preferred policies that the sickest patients should receive donated organs first, regardless of their location. While this argument is both ethically and intuitively appealing, those opposed to greater national organ sharing have argued that measures of sickest patients are both flawed and subject to manipulation. Greater national organ sharing can also exacerbate existing inequities in the organ transplant system as wealthy urban areas generally import organs from poorer and more rural parts of the country. Analyzing a dataset of every patient waitlisted for a liver between 2002 and 2017, this Article reveals, for the first time, a deeply troubling reality. The results of the analysis suggest that transplant professionals have routinely manipulated the waitlist priority of their patients. Moreover, this manipulation occurs more often in areas of the country that argue most vehemently in favor of national allocation policies. This Article argues that these recent policy changes, favoring greater national organ sharing, are extensions of the manipulative tactics revealed by the empirical analysis. Given the results of the empirical analysis, this Article argues that the time has come to formalize local priority in organ allocation policy by amending the National Organ TransplantAct. This amendment would roll back recent changes to promote greater national organ sharing that have been justified with manipulated evidence and prevent organs from moving from poorer to wealthier areas of the country. This rollback represents an important first step in combating inequities in the transplant system

The Folklore of Unfairness

The Federal Trade Commission Act\u27s ban on unfair ... acts and practices would, on its face, seem to give the FTC an awesome power to define proper treatment of consumers in changing conditions. But even in a world of widespread corporate surveillance, ongoing racial discrimination, impenetrably complex financial products, pyramid schemes, and more, the unfairness authority is used rarely, mostly in egregious cases of wrongdoing. Why? The standard explanation is that the more expansive notion of unfairness was tried in the 1970s, and it failed spectacularly. The FTC of this era was staffed by bureaucrats convinced of their own moral superiority and blind to the self-correcting dynamics of the market. When the FTC finally reached too far and tried to ban television advertising of sugary cereals to children, it undermined its own legitimacy, causing Congress to put pressure on the agency to narrow its definition of unfairness. This Article argues that this standard explanation gets the law and the history wrong, and, thus, that the FTC\u27s unfairness authority is more potent than commonly assumed. The regulatory initiatives of the 1970s were actually quite popular. The backlash against them was led by the businesses whose profit margins they threatened. Leaders of these businesses had become increasingly radicalized and well-organized and brought their new political clout to bear on an unsuspecting FTC. It was not the re-articulation of the unfairness standard in 1980 that narrowed unfairness to its current form, but rather the subsequent takeover of the FTC by neoliberal economists and lawyers who had been supported by these radicalized business leaders. The main limitation on the use of the unfairness authority since then has been the ideology of regulators charged with its enforcement. In fact, the conventional morality tale about the FTC\u27s efforts in the 1970s are part of what keeps this ideology dominant. A reconsideration of the meaning of unfairness requires situating the drama of the 1970s and 80s in a longer struggle over governance of consumer markets. Since the creation of the FTC, and even before, an evolving set of coalitions have battled over what makes markets fair. These coalitions can be divided roughly into those who favor norm setting by government agencies informed by experts held accountable to democratic publics and those who favor norm setting by business leaders made accountable via the profit motive. The meaning of unfair ... acts and practices has been defined and redefined through these struggles, and it can and should be redefined again to reconstruct the state capacity to define standards of fair dealing

Sex, Crime, and Serostatus

The HIV crisis in the United States is far from over. The confluence of widespread opioid usage, high rates of HIV infection, and rapidly shrinking rural medical infrastructure has created a public health powder keg across the American South. Yet few states have responded to this grim reality by expanding social and medical services. Instead, criminalizing the behavior of people with HIV remains an overused and counterproductive tool for addressing this crisis - especially in the South, where HIV-specific criminal laws are enforced with the most frequency. People living with HIV are subject to arrest, prosecution, and lengthy prison sentences if they fail to disclose their HIV-positive serostatus before engaging in sexual or needle-sharing activities. Passed in response to panic following the discovery of HIV, these laws have not kept pace with medical advancements regarding the transmission and treatment of the infection. As a result, they criminalize behaviors that pose little risk of transmission and punish people who cannot or do not infect others. HIV criminalization laws also contribute to the spread of HIV by disincentivizing HIV testing, which would otherwise connect people to prevention and treatment plans. While other scholars have critiqued these laws, this Article is the first to argue that state legislatures should pivot away from criminalization toward a comprehensive response to HIV informed by harm reduction-a branch of public health emphasizing risk mitigation. This approach must prioritize both the expansion of preventative services and the repeal of most HIV exposure laws. Simultaneously broadening services and narrowing criminal liability would remove barriers to HIV testing and promote early medical interventions, which reduce the spread of HIV and improve health outcomes. This paradigmatic shift also introduces a framework that can be implemented in other public health contexts that currently over-rely on criminalization throughout the region and the country

Incentivized Torts: An Empirical Analysis

Courts and scholars assume that group causation theories deter wrongdoers. This Article empirically tests, and rejects, this assumption, using a series of incentivized laboratory experiments. Contrary to common belief and theory, data from over 200 subjects show that group liability can encourage tortious behavior and incentivize individuals to act with as many tortfeasors as possible. We find that subjects can be just as likely to commit a tort under a liability regime as they would be when facing no tort liability. Group liability can also incentivize a tort by making subjects perceive it as fairer to victims and society. These findings are consistent across a series of robustness checks, including both regression analyses and nonparametric tests. We also test courts\u27 and scholars\u27 insistence that the but-for test fails in cases subject to group causation. We use a novel experimental design that allows us to test whether, and to what extent, each individual\u27s decision to engage in a tortious activity is influenced by the decisions of others. Upending conventional belief, we find strong evidence that the but-for test operates in group causation settings (e.g., concurrent causes). Moreover, across our experiments, subjects\u27 reliance on but-for causation produced the very tort that group liability attempted to discourage. A major function of liability in torts, criminal law, and other areas of the law is to deter actors from engaging in socially undesirable activities. The same is said about doctrines that result in group liability. Our empirical results challenge this basic logic