Toward True Fair-Chance Hiring: Balancing Stakeholder Interests and Reality in Regulating Criminal Background Checks

Ian B. Petersen

94 Texas L. Rev. 175

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Background checks often lead employers to discriminate against ex-offenders by giving these applicants lesser consideration, or even throwing out their applications altogether. But although ex-offenders are more likely to recidivate, there is little or no evidence that they will “act out” on the job, especially where their criminal record is unrelated to the job duties for the position sought. Additionally, recidivism rates drop significantly within just a few years of release. On the other hand, knowledge of certain crimes might be valuable to employers.

In his Note, Mr. Petersen argues that a balance between these two interests can be struck. Specifically, he urges using a four-part framework to regulate the use of criminal records in employment. His proposed system enables a firm to examine a candidate’s entire criminal record, thereby protecting them from various legal claims and risks, while simultaneously diminishing the chance of prejudice due to unrelated crimes. Mr. Petersen concludes by assessing the current federal approach and local / state approaches. He finds that current approaches are fundamentally inadequate, and that ban the box policies, while widely adopted and largely useful, could be improved with his proposed system.

The “Right to Try” Investigational Drugs: Science and Stories in the Access Debate

Rebecca Dresser

93 Texas L. Rev. 1631

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Right-to-try laws grant terminally ill patients the right to try investigational drugs. States began enacting these laws in 2014. Professor Dresser analyzes the rhetoric used by access advocates and defenders of access restrictions in the policy debates surrounding right-to-try laws. She concludes that the debate up until this point has included selective storytelling that has failed to give an accurate picture of the implications of right-to-try laws and that such selectiveness needs to be remedied in order to have informed debate on the subject.

Where Law and Science (and Religion?) Meet

David L. Faigman

93 Texas L. Rev. 1659

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The law is a great borrower, taking as it sees fit findings from science and values and insights of religion. It does so, however, exclusively for reasons associated with its own objectives which are many and varied and include ideals of justice, fairness, and accuracy, as well as more mundane considerations such as efficiency and finality. In this Article, Professor Faigman explores the intersection of law and science and offers some tentative observations regarding where law and science have their roots—in religion.

Criminal Law’s Science Lag: How Criminal Justice Meets Changed Scientific Understanding

Jennifer E. Laurin

93 Texas L. Rev. 1751

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Many people have been convicted of crimes based upon science that was completely discredited after their conviction. Professor Laurin dubs the time between such a conviction and the change in scientific understanding as “science lag.” She details how she thinks the criminal justice system does and should take changes in scientific knowledge into effect by remedying already-adjudicated criminal cases.

Rethinking Judicial Review of Expert Agencies

Elizabeth Fisher, Pasky Pascual & Wendy Wagner

93 Texas L. Rev. 1681

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When generalist courts review agency decisions, they are often faced with the problem of needing to provide judicial oversight while at the same time not second-guessing the agency’s technical expertise. Professor Fisher, Mr. Pascual and Professor Wagner performed an empirical study on national ambient air quality standards (NAAQS) decisions to determine how courts decide these kinds of cases. They conclude that judicial review of agency decisions is a multifaceted collaborative effort between the agency and the courts and that internal yardsticks adopted by the agency provide helpful tools for courts to review agency decisions.

Serviceable Truths: Science for Action in Law and Policy

Sheila Jasanoff

93 Texas L. Rev. 1723

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A discussion of the appropriate relationship between science and the law often devolves into discussing how scientific knowledge may be better transmitted into legal proceedings. Professor Jasanoff argues that this framing of the relationship between science and the law is asymmetric. She looks to science and technology studies in order to describe a more symmetric way of understanding the ideal relationship between science and the law.

Science and Policy in Setting National Ambient Air Quality Standards: Resolving the Ozone Enigma

Thomas O. McGarity

93 Texas L. Rev. 1783

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Professor McGarity examines the Environmental Protection Agency’s (EPA’s) ozone “rulemakings” in order to better understand the interaction of science and policy in promulgating national ambient air quality standards (NAAQS). He concludes that the EPA’s approach to NAAQS, though not very sensitive to the costs involved, has managed to bring significant reduction in emissions of pollutants while not causing serious economic outcomes.

Constructing Evidence and Educating Juries: The Case for Modular, Made-In-Advance Expert Evidence About Eyewitness Identifications and False Confessions

Jennifer L. Mnookin

93 Texas L. Rev. 1811

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Psychological testimony on the actual importance of certain kinds of evidence, such as eyewitness testimony and confession, has grown in the past few decades. The importance of understanding this kind of evidence has been highlighted by the many people who were convicted on eyewitness testimony but later exonerated by DNA evidence. Expert psychological testimony, however, is expensive and there are not enough experts to testify in every criminal case. Therefore, Professor Mnookin argues that premade, modular testimony should be created to be given to juries on these topics.

Science Disputes in Abortion Law

John A. Robertson

93 Texas L. Rev. 1849

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Professor Robertson examines several representative disputes in abortion law that require courts to decide the constitutionality of abortion restrictions based on their scientific basis. He concludes that in this area of the law the specific legal question tends to control the outcome more than the validity of the science. He proposes that this may be true for other areas of the law as well.

Defining Death: Getting It Wrong for All the Right Reasons

Robert D. Truog

93 Texas L. Rev. 1885

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The “dead donor rule” (DDR) is an implicit rule that controls the procurement of organs by, for instance, forbidding physicians from harvesting vital organs from living patients. Professor Truog provides a detailed scientific discussion on how science defines death and concludes that, under current law, patients may be legally dead but not dead by scientific standards, which would not conform with the DDR. He then examines the options available to society if its current definition of death does not conform with the DDR.