Contagion Without Relief: Democratic Experimentalism and Regulating the Use of Antibiotics in Food-Producing Animals

We are progressing toward a post-antibiotic world: Antibiotic drugs that could once treat basic infections are losing their effectiveness at an accelerating rate. If this trend continues, common illnesses will become potentially deadly, and more complex procedures—chemotherapy, surgeries, dialysis—will carry much more significant risk. The modern industrial agricultural system may have contributed significantly to this state of affairs. The vast majority of antibiotics sold in the United States each year—an estimated 70 to 80 percent—are for use in animal agriculture. These antibiotics are primarily administered to food-producing animals at routine, low doses as a cheap method of promoting faster growth and preventing disease in crowded, unsanitary conditions. These subtherapeutic doses, however, are also the most conducive to breeding antibiotic-resistant bacteria. The resistant bacteria bred in animals are then transferred to humans through a variety of mechanisms and reduce the efficacy of antibiotic drugs. In order to address the increasing problem of antibiotic resistance in humans, it is crucial to reduce the subtherapeutic use of antibiotics in food-producing animals. How to efficiently and cost effectively reduce their use, however, remains unclear, and is not a problem traditional command-and-control legislation can solve.

Democratic experimentalist theory offers a compelling framework for addressing this problem. Under the traditional democratic experimentalist model, a central institution sets a common goal and then delegates authority to local institutions to experiment to achieve that goal. Local institutions then provide data on their performance to the central institution to pool, assess, and re-benchmark. The federal government has identified the importance of reducing antibiotic use in livestock, but beyond articulating this goal, has failed to act thus far. In its place, California has become the first state to pass a law banning the subtherapeutic use of antibiotics in food-producing animals. This legislation is an exemplar of state action with the potential to improve the food system and public health both locally and in other states, and it could do so effectively using a new, layered iteration of democratic experimentalism.

The California law is, however, subject to legal challenge under federal preemption grounds. This Article analyzes these grounds and concludes that the law may survive such a challenge because it furthers federal objectives in a number of ways and is supported by California’s compelling interest in protecting the health and safety of its citizens. The Article further contends that democratic experimentalist theory also bolsters the argument against federal preemption here and more generally when addressing these types of knowledge-intensive, scientifically uncertain policy areas where experimentation is key to problem-solving and especially where there is a threat to public health. As the only state action in this critical area, ensuring the experimentalist implementation of the California law and securing its fate against preemption are crucial to addressing the threat to public health posed by antibiotic resistance.

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Too Big to Disclose: Firm Size and Materiality Blindspots in Securities Regulation

This Article argues that the securities disclosure regime contains previously unexamined structural deficiencies that pertain to the information provided by the largest public companies. These deficiencies arise from the operation of the materiality standard, a core element of the disclosure regime that is used in a number of SEC disclosure rules. The materiality standard is designed to limit firms’ disclosure to information that would be of importance to investors, and to prevent the overproduction of information. I suggest, however, that in the case of large firms the materiality standard can also lead to the underdisclosure of information—or to “materiality blindspots.” The materiality standard determines whether firm-specific information must be disclosed by assessing its importance relative to the size of the firm and the “total mix of information” about that firm. Since the threshold for what is material increases as firms get bigger, however, at the very largest firms even matters that are significant or sizeable in absolute terms may be deemed immaterial and remain undisclosed. Such firms are “too big to disclose” and, in a perfectly legal manner, take advantage of the materiality standard to avoid disclosure of important matters.

To illustrate the existence of materiality blindspots, I analyze the SEC rules in three key disclosure areas (material contracts, material legal proceedings, and material business spending) and then present original case studies and survey evidence based on the disclosure practices of large firms. After revisiting generally accepted theories on disclosure regulation through the prism of firm size and analyzing examples from the case studies, I identify two sets of potential harms. First, materiality blindspots may undermine investor protection and corporate governance, including by diminishing the accuracy of security prices and by making inside and outside monitoring for fraud or suboptimal management practices more difficult. Second, the operation of the materiality standard may give systematic advantages to large firms relative to smaller firms by enabling large firms to minimize the interfirm costs of disclosure; this can lead to market distortions and in effect serve as a regulatory subsidy for bigness. To remedy these problems, I propose that certain disclosure requirements that currently rely only on the principles-based materiality standard should be supplemented with targeted rules employing quantitative thresholds for disclosure. This would provide a safety net against materiality blindspots by requiring large firms to disclose additional information that is not captured by the existing materiality standard, but that is nonetheless significant or sizeable in absolute terms.

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The Stream Of Violence: A New Approach to Domestic Violence Personal Jurisdiction

There is a split among state courts about whether personal jurisdiction over an alleged domestic violence perpetrator is required in order to obtain a civil protection order preventing the defendant from contacting the victim. Some courts have held that such orders interfere with the defendant’s liberty interests, and therefore the Due Process Clause requires personal jurisdiction for the issuance of such orders. Other courts have held that personal jurisdiction is not required because such protection orders are analogous to custody and divorce orders, which, under the “status exception,” courts have historically entered without establishing personal jurisdiction over the other party. This Article argues that the focus on the status exception is misplaced and that instead, courts should reframe the way they look at personal jurisdiction in domestic violence cases by applying the principles embedded in the stream of commerce doctrine and the effects test. Drawing upon common threads from each line of cases, the Article proposes a test for domestic violence jurisdiction that focuses on the knowledge of the defendant about the victim’s likely destination if she is forced to flee to another state.

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Rethinking Misdemeanor Neglect

Millions of criminal defendants, most of them indigent, are convicted of misdemeanor offenses every year. Many are constitutionally entitled to free legal counsel, yet in practice the quality of that counsel depends on how public defender agencies allocate attorneys between misdemeanor and felony defendants. Attorney experience is a limited, if not scarce, resource, and public defenders will often manage this resource by allocating the more experienced attorneys to those defendants charged with felony offenses. This approach seems sensible; after all, defendants charged with felony offenses risk longer incarceration periods than those charged with misdemeanors.

Yet, in this Article, I show that this widespread approach is misguided. Misdemeanor convictions are not as harmless as many assume. Every year, misdemeanor convictions saddle millions of Americans with consequences affecting their liberty, housing, employment, education, and immigration status. I argue that public defender administrators should respond to the significant costs of misdemeanor convictions by emphasizing misdemeanor representation even at the expense of felonies. An individual public defender can handle multiple misdemeanor cases with the same amount of effort necessary to represent a single felony case. Misdemeanors also have a significant effect on how much future contact a particular defendant, and the third parties within his or her network, will have with the criminal justice system. In this Article, I look beyond the dated understanding of the right to counsel to adopt a more effective approach to public defender resource allocation. This approach focuses on misdemeanor representation instead of felonies by considering how public defenders could maximize the benefits of their attorney experience resource, instead of simply relying on the severity of the statutory punishment to guide their distribution decisions.

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Thirty Years After Al-Khazraji: Revisiting Employment Discrimination Under Section 1981

Many scholars have written about the racialization process experienced by people of Southwest Asia and North African (SWANA) descent, emphasizing the increased discrimination experienced by those perceived as Middle Eastern or SWANA. There is very little scholarship, however, concentrating specifically on employment discrimination faced by those of SWANA descent in the United States. Although much § 1981 literature exists, few scholars have surveyed the § 1981 landscape that has developed after two landmark Supreme Court cases: Saint Francis College v. Al-Khazraji and Shaare Tefila v. Cobb. Using Iranian plaintiffs as a case study, this Comment argues that § 1981’s outdated notion of race creates a theoretical distinction between categories such as race, color, ancestry, ethnicity, and national origin in situations where no such distinction exists. I argue that as a result of the Court’s inability to recognize or articulate the differences between these distinctions, groups such as SWANA are inappropriately excluded from protection under § 1981.

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