This Article argues that because of its historical and ongoing investments in settler colonialism, the Canadian state has long been complicit and continues to be complicit in the human trafficking of indigenous women and girls in Canada. In addition to providing indigenous bodies for labour and sexual exploitation, Canada’s trafficking of indigenous people has been essential not only to securing...
The Racial Roots of Human Trafficking
This Article explores the role of race in the prostitution and sex trafficking of people of color, particularly minority youth, and the evolving legal and social responses in the United States. Child sex trafficking has become a vital topic of discussion among scholars and advocates, and public outcry has led to safe harbor legislation aimed at shifting the legal paradigm away punishing...
Giving as Governance? Philanthrocapitalism and Modern-Day Slavery Abolitionism
This Essay examines the potential influence of a new breed of actor in the global antitrafficking arena: the venture philanthropist, or “philanthrocapitalist.” Philanthrocapitalists have already helped rebrand “trafficking” as “modern-day slavery,” and have expressed their ambitions to lead global efforts to eradicate the problem. With their deep financial resources and access to powerful...
Beyond Coercion
Many immigrants’ rights advocates and scholars have recognized the undocumented worker exploitation that takes place when immigration restrictions enter the workplace, which create incentives for employer misconduct and increase the vulnerability of workers without status. However, little has been discussed about the broader implications of the currently expansive immigration enforcement regime...
(E)racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors
Over the last twenty years, domestic sexual trafficking of children has received increased attention from state and national policymakers and advocates. Indeed, states across the country have enacted laws establishing harsh new penalties for individuals convicted of domestic sexual trafficking. At the same time, arrest and conviction rates for Black girls within the juvenile justice system are...
Black Girls and the (Im)Possibilities of a Victim Trope: The Intersectional Failures of Legal and Advocacy Interventions in the Commercial Sexual Exploitation of Minors in the United States
The Trafficking Victims Protection Act (TVPA) considers all youth less than eighteen years of age trafficking victims without a showing of force, fraud, or coercion. The presumption is that minors cannot legally consent to sex and thus are always victims. Being characterized as a victim helps youth access support services and avoid prosecution in certain circumstances. However, local and state...
Deferred Action, Supervised Enforcement Discretion, and the Rule of Law Basis for Executive Action on Immigration
In November 2014, the Obama administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative, which built upon a program instituted two years earlier, the Deferred Action for Childhood Arrivals (DACA) initiative. As mechanisms to channel the government’s scarce resources toward its enforcement priorities more efficiently and effectively, both...
National Security’s Broken Windows
This Article examines the federal government’s community engagement efforts with American Muslim communities as part of a larger infrastructure for policing radicalization and countering violent extremism (CVE). While the federal government presents community engagement as a softer alternative to policing, community engagement is integrated into a larger policing apparatus, making the reality far...
Interstitial Federalism
Spillover commons are common-pool resources that cross jurisdictional boundaries. Governing spillover commons poses unique and significant challenges. If jurisdictional boundaries are drawn too narrowly, jurisdictions can externalize costs to neighbors. If the jurisdictional boundaries are drawn too broadly, too many remote stakeholders unnecessarily increase transaction costs. The jurisdictional...
Bankruptcy Survival
Of the large, public companies that seek to remain in business through bankruptcy reorganization, only 70 percent succeed. The assets of the other 30 percent are absorbed into other businesses. Success is important both because it is efficient and because it preserves jobs, communities, supplier and customer relationships, and tax revenues. This Article reports the findings of the first...
A Preferable Way to Treat Preferential Treatment
This Comment advocates for a particular definition of “preferential treatment.” On April 22, 2014, the U.S. Supreme Court held that the State of Michigan’s constitutional amendment forbidding preferential treatment based on race or gender was consistent with the U.S. Constitution. The case was Schuette v. Coalition to Defend Affirmative Action. The amendment, known as Proposal 2, has effectively...
No Legs to Stand On: Article III Injury and Official Proponents of State Voter Initiatives
The U.S. Supreme Court’s decision in Hollingsworth v. Perry—which held that the official proponents of California’s Proposition 8 did not have standing to appeal an adverse district court judgment—deals a heavy blow to voter-enacted legislation in the twenty-four states that make use of voter initiative processes. Challenges to voter-enacted legislation are increasingly being brought in federal...
Introduction to The Autocratic Legal Playbook
The Autocratic Legal Playbook
Abstract This Article examines the role of lawyers in the ascent of American autocracy. It analyzes that role in relation to the development and innovation of the autocratic legal playbook: the repertoire of tactics for mobilizing law to degrade democracy. The central aim is to show how the playbook has been used by lawyers to weaken institutions that constrain the executive and to explore what...
Addictive Speech: How Social Media's Engineered Engagement Threatens Thinker-Based Speech Autonomy
Social media platforms claim to champion free speech, yet their relentless pursuit of maximal engagement undermines the very autonomy that free speech principles are designed to protect. This Comment argues that platforms’ engagement-seeking algorithms and addictive design features create conditions for what it terms “addictive speech”: a phenomenon in which users are manipulated into making...
De-Weaponizing Prison Transfers
Prison transfers have the power to destroy viable civil rights claims advanced by litigants who are incarcerated against prison officials. These prison transfers can be and have been employed as a litigation tactic to moot claims for relief and shield defendants from personal liability. Prison transfers also indirectly impact ongoing or potential litigation, making it harder for litigants who are...
Crypto Associations
Crypto associations operate the digital ledgers known as blockchains. They generally do not choose to organize as traditional legal entities governed by well-established fiduciary duties. Instead, they claim to have no central manager and rely on economic incentive to spur decentralized governance. In litigation, crypto associations have contended that they owe no contractual or other legal...
Reproductive Wrongful Convictions: The Making of "Unfit" Mothers
This Article draws a straight line from wrongful convictions of women in the past to criminal charges based on pregnancy and parenting behaviors today. Faulty forensic evidence and biased evidence relying on sex-based stereotypes have, in combination, been used to convict innocent women, particularly in situations where an accident or health event was misconstrued to be a criminal act. Seventy...
The Authoritarian Fourth Amendment
The second Trump administration has prompted widespread concern about the health of our constitutional republic. Attacks on political rivals, higher education, the media, and civil liberties raise fundamental questions about what can check the rise of authoritarianism in the United States. Can the Constitution save the republic? Can the Fourth Amendment help protect individual liberties? This...
The Scarlet Letter Plaguing Black Veterans: Racial Disparity and the Pursuit of Restorative Justice for Veterans with ‘Bad Paper’ Military Discharges
Racial inequality in the military justice and discharge systems remains one of the least examined yet most consequential civil rights issues of our time. Black servicemembers are far more likely than their white peers to receive “bad paper” discharges, which are punitive separations that strip them of essential veterans’ benefits, from VA health care to the GI Bill. These discharges, often the...
