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June 24, 2019

Are Autonomous Entities Possible?

Over the last few years, I have demonstrated how modern business-entity statutes, particularly LLC statutes, can give software the basic capabilities of legal personhood, such as the ability to enter contracts or own property. Not surprisingly, this idea has been met with some resistance. This Essay responds to one kind of descriptive objection to my arguments: That courts will find some way to prevent the results I describe either because my reading of the business-entity statutes would take us too far outside our legal experience, or because courts will be afraid that robots will take over the world, or because law is meant to promote human (versus nonhuman) rights. As I demonstrate in this essay, such objections are not correct as a descriptive matter. These arguments make moral and policy assumptions that are probably incorrect, face intractable line-drawing problems, and dramatically overestimate the ease of challenging statutorily valid business structures. Business-entity law has always accommodated change, and the extensions to conventional law that I have identified are not as radical as they seem. Moreover, the transactional techniques I advocate for would likely just need to succeed in one jurisdiction, and regardless, there are many alternative techniques that, practically speaking, would achieve the same results.

March 12, 2019

Minnesota v. Muccio: The Constitutionality of Minnesota's Sexual Grooming Law

Grooming a child for a sexual act is dangerous behavior that should be outlawed. However, state grooming laws, when drafted too broadly, run the risk of violating the First Amendment. This Comment examines a recent constitutional challenge to a Minnesota electronic grooming statute and argues that the Minnesota Supreme Court applied the wrong standard of review. The Court failed to apply strict scrutiny and thus upheld an overbroad statute in violation of First Amendment doctrine. This Comment also suggests a simple revision to bring the Minnesota statute in line with the Constitution and offers model legislation for other states interested in enacting a sexual grooming statute.

February 17, 2019

Restoring the Statutory Safety-Valve for Immigrant Crime Victims: Premium Processing for Interim U Visa Benefits

This Essay focuses on the U visa, a critical government program that has thus far failed to live up to its significant potential. Congress enacted the U visa to aid undocumented victims of serious crime and incentivize them to assist law enforcement without fear of deportation. The reality, however, is that noncitizens eligible for U status still languish in limbo for many years while remaining vulnerable to deportation and workplace exploitation. This is in large part due to the fact that United States Citizenship and Immigration Services (USCIS) has never devoted sufficient resources to processing these cases. As a result, the potential benefits of the U visa remain underrealized and communities are left less safe. In an era of sustained focus on enforcement and increased instability within immigrant communities, the situation becomes ever more urgent. This Essay introduces and defends a simple administrative innovation that would dramatically improve the process: a premium processing route for interim approvals and employment authorization. Although our proposal cannot resolve all the underlying problems, it is pragmatic, easily implemented, and superior to the status quo.

December 31, 2018

Housing, Healthism, and the HUD Smoke-Free Policy

On July 30, 2018, the U.S. Department of Housing and Urban Development (HUD) rule prohibiting residents of public housing from smoking within twenty-five feet of any housing project took effect. These new regulations—HUD’s “smoke-free policy”—received near-universal acclaim as a means to improve public health, in particular by reducing vulnerable populations’ exposure to secondhand smoke. This Essay analyzes the smoke-free policy from the perspective of healthism—discrimination on the basis of health status. We argue that banning public housing residents from smoking is unfairly discriminatory for a variety of reasons. To start, the rule may not achieve its desired effects. Because a violation could lead to eviction, the policy may well push many public housing residents out onto the street, ironically worsening health outcomes. The rule also intrudes into the private lives of smokers in public housing by forbidding them from engaging in lawful conduct in the sanctity of their homes. It singles out smokers for regulation in a way that validates stigma. Finally, HUD’s smoke-free policy poses unappreciated distributional concerns, with the heaviest burdens falling on historically disadvantaged populations like the elderly, people with disabilities, certain racial and ethnic minorities, and the poor. The Essay concludes by attempting to salvage the rule by reflecting on how HUD might modify its policy to improve compliance and avoid discrimination, including smoking shelters, smoking cessation support, and incentive structures.

Editor's Note:Thanks to Shelley Cavallieri, Lee Ann Fennell, Doug Harris, Christine Klein, Lorna Fox O’Mahony, Jim Smith, and participants at the 2017 Association of Law, Property & Society (ALPS) conference and the University of Houston Law Center Work-in-Progress Workshop for helpful comments. Brittanie Zinsmeyer provided outstanding research assistance.