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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.

December 20, 2018

Arguing with the Building Inspector About Gender-Neutral Bathrooms

Conventional interpretations of building codes are among the greatest barriers to building the gender-neutral bathrooms of the future. Focusing on the example of schools, this Essay argues for a reinterpretation of the International Building Code in light of its policy goals: safe, private, and equitable access to public bathrooms. Under this reinterpretation, the Code allows all public bathrooms to be gender-neutral.

October 1, 2018

#SoWhiteMale: Federal Civil Rulemaking

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers—while expert—are not apolitical actors. This Essay argues that the homogeneous composition of the Civil Rules Committee, not only historically, but also today, limits the quality of the rules produced and perpetuates inequality. The remedy to this problem is straightforward: appoint different people to the Committee. To be sure, the federal civil rulemaking process is but one small part of where and how gender and racial identity matter. Even still, this Essay argues that the Civil Rules Committee members, the Judiciary, and the Bar should demand that the civil rulemaking Committee cease being #SoWhiteMale.

Editor's Note:I am grateful to Zachary Clopton, Andrew Hammond, Elizabeth Porter, and Adam Steinman for their comments. Thank you also to Evanie Parr for her fabulous research assistance. This paper benefitted greatly from comments at the AALS 2018 Annual Meeting.

September 24, 2018

McDonnell v. United States: Legalized Corruption and the Need For Statutory Reform

In 2016, the Supreme Court granted certiorari to former Governor Bob McDonnell’s public corruption case. In 2014, a federal jury found McDonnell guilty of eleven counts of public corruption for accepting over $175,000 worth of gifts and loans from Virginia businessman Jonnie Williams. The conviction was affirmed by the Fourth Circuit. In overturning the Fourth Circuit, the Supreme Court significantly narrowed the definition of an “official act” in the federal bribery statute, which is the controlling statute in most public corruption cases. This Comment argues that the Court’s decision unduly narrows the bribery statute’s scope to punish only the most egregious acts of public corruption. This Comment suggests drawing upon a hybrid between the agency and corporate duties of loyalty in private law to amend the federal bribery statute and provide a more practicable standard by which courts can distinguish between regular constituent services and unlawful public corruption.