Volume 37, Issue 1

Just Environmentalism 

Brigham Daniels, Michalyn Steele & Lisa Grow Sun

Thirty years ago, the environmental justice movement emerged as a powerful critique of traditional environmentalism, which had largely ignored the distribution of environmental harms and the ways in which those harms were concentrated on the poor and communities of color. This Article calls for a similarly groundbreaking reimagination of both mainstream environmental policy and environmental justice: we argue that, to truly embrace justice, environmentalists must take account not only of the ways that environmental harms uniquely impact vulnerable populations, but also of the costs that environmental protection imposes on the most vulnerable among us.
 

The Problem of Wage Theft

Nicole Hallett

Wage theft inflicts serious harm on America’s working poor but has received little attention from policymakers seeking to address income inequality in the United States. This Article provides a comprehensive analysis of the causes of the wage theft crisis and the failure of the current enforcement regime to address it. It argues that existing policy reforms will fail, because they misunderstand the nature of the crisis and the incentives that employers face when deciding to steal workers’ wages. It then proposes series of reforms that could work, while arguing that changing the economic calculus alone will be unlikely to solve the problem if social norms remain unchanged.
 
 

Law as Source: How the Legal System Facilitates Investigative Journalism

Roy Shapira

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.

Sexism in the “Bathroom Debates”: How Bathrooms Really Became Separated by Sex

W. Burlette Carter

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 at 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 sexseparation is rooted in sexism, paternalism, and outdated Victorian notions of modesty.
 

An Attack on America’s Peacemakers Is an Attack on All of Us: On the Importance of Embracing the Power of Communities and Rejecting the Trump Administration’s Attempt to Eliminate the Community Relations Service

Becky Monroe

As images of neo‐Nazis marching through our streets fill our screens, and reports of a growing number of hate crimes sweep the country, how can the Community Relations Service (CRS), a small component of the U.S. Department of Justice created by the Civil Rights Act of 1964, help preserve democracy? What is at stake when the Trump Administration threatens to essentially eliminate CRS? This Essay describes the ways in
which CRS not only helps communities address tension associated with discrimination, reduce the potential for violence, and prevent and respond more effectively to hate crimes, but also how its services help strengthen democracy.
 

Starving the Statehouse: The Hidden Tax Policies Behind States’ Long-Run Fiscal Crises

Jeremy Pilaar

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.
 
 

Protecting Deceptive Academic Research Under the Computer Fraud and Abuse Act

Brian Z. Mund

This Comment addresses the CFAA’s potentially stifling effects on important academic research and explores academics’ violations of a website’s access conditions through deceptive consent. Scant scholarship has explored academic deception in the online context, and no previous work has considered academic freedom arguments within light of the CFAA. After identifying the “line” where violations of website terms of agreement likely transgress the CFAA, this Comment argues that researchers should receive greater latitude under the CFAA to obtain deceptive consent for website access. The Comment analogizes the interests in academic investigation to those in law enforcement operations and further contends that public university researchers, like government law enforcement agents, should be able to obtain valid consent through misrepresentation in limited circumstances. The Comment concludes that, under limited conditions, academic researchers may achieve valid consent through behavior that might otherwise amount to willful code‐based violations of a website’s terms of service.