The Harvard Law and Policy Review is excited to announce the release of Volume 10.2! Volume 10.2 explores cutting edge policymaking at the state level—examining meaningful changes, setbacks, and lessons learned—as well as the legal questions surrounding state innovation. It also includes articles by Catherine MacKinnon, Brishen Rogers and others on important, topical legal and policy debates.


Symposium: State of the States: Laboratories of Democracy


Foreword: Federalism Bound

Joel Rogers

Joel Rogers argues that we are in a time of both “good federalism,” where local actors experiment and share useful improvements to their communities, and “bad federalism,” where local elites use the instruments of federalism to further oppressive and destructive reforms. Current politics, he warns, risk drowning the good federalism with the bad. Rogers introduces and draws on the articles in this symposium to make a case for good federalism.


The State Role in K–12 Education: From Issuing Mandates to Experimentation

Betheny Gross and Paul T. Hill

In December 2015, Congress passed the Every Student Succeeds Act, rolling back many components of No Child Left Behind and giving states more autonomy over public education. Betheny Gross and Paul T. Hill situate this development within the arc of public education policy and discuss how greater state autonomy can and should illustrate democratic experimentalism. To ensure that states capitalize on this opportunity and mitigate the risks of deregulation, Gross and Hill urge continued transparency and state focus on student achievement.


A New State Ice Age for Gun Policy

Allen Rostron

In the face of federal inaction on measures to reduce gun violence during President Obama’s administration, Allen Rostron describes reforms taken by “blue” states to tighten gun regulations and reforms by “red” states making it much easier to acquire and carry weapons. Rostron finds some virtue in state experimentation, but discusses the limits of federalism for gun policy stemming from the spillover effects of one state’s laws on others.


A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels

Brian M. Murray

Every day, the FBI adds over ten thousand names to its eighty million-strong criminal database. These records can be generated from a single arrest and carry lifelong consequences. Brian M. Murray evaluates federal and state-level expungement initiatives that offer the promise of a new beginning. After examining several case studies, Murray argues that states should follow Indiana’s example of a broad, efficient, and effective expungement statute to mitigate the scarlet letter of a criminal record.


State Innovation on Climate Change: Reducing Emissions from Key Sectors While Preparing for a “New Normal”

Vicki Arroyo, Kathryn A. Zyla, Gabe Pacyniak, and Melissa Deas

Vicki Arroyo and co-authors from the Georgetown Climate Center examine state-level reforms to reduce greenhouse gas emissions from the electricity and transportation sectors and to prepare for the impacts of climate change. The article argues that while state and local reforms are insufficient by themselves to address the global challenge of climate change, current state experimentation produces useful models for other states, the federal government, and other countries to follow.


General Essays


Rape Redefined

Catharine A. MacKinnon

Promoting sex equality is Catharine A. MacKinnon’s life’s work. This piece presents her culminating analysis of rape law based on gender equality principles. In dialogue with the on-going revisions of the Model Penal Code’s sexual assault provisions and building on international legal developments, MacKinnon demonstrates that the concept and doctrine of “consent” in rape law ignores the reality of the inequality of the sexes as context for, and potential content in, sexual interactions, making impunity for sexual assault commonplace. MacKinnon proposes a statutory redefinition of rape to make rape exceptional, then extinct.


Employment Rights in the Platform Economy: Getting Back to Basics

Brishen Rogers

Are Uber drivers employees or independent contractors? Brishen Rogers finds that Uber drivers, and similar workers in the platform economy, do not fall neatly into either employment category under existing tests. Nevertheless, Rogers argues that the anti-domination principle underlying existing employment tests strongly indicates that the drivers are employees and that proposals to limit platform economy firms’ liability are premature at best and misguided at worst.


Residual Value Capture in Subsidized Housing

Brandon M. Weiss

For over twenty-five years, the Low Income Housing Tax Credit has been the most significant federal housing program, representing $8 billion in annual investment to develop low income housing. However, starting in 2020 key program restrictions on rent will start to expire and a massive amount of affordable housing and public value will be lost. Brandon M. Weiss explains how the tax credit works and advocates a three-sector approach between the government, private, and nonprofit sectors to maximize public value in low income housing development.


Student Note


“No Imbecile at All”: How California Won the Autism Insurance Reform Battle, and Why Its Model Should be Replicated in Other States

Ariana Cernius

Autism is the fastest growing developmental disability in the United States, affecting one in sixty-eight children. Yet there is a patchwork of state-level insurance laws regarding autism treatment, making some states much better for families affected by autism than others. Ariana Cernius compares the laws and advocacy strategies that led to insurance reform in California and North Carolina to provide a roadmap for advocates in other states.

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