DANIELI EVANS

Fourth Amendment law is in disarray. In recent years, courts and scholars have questioned central aspects of Fourth Amendment doctrine—in particular, the reasonable expectations of privacy test that has governed since the 1960s. Scholars and judges have argued for abandoning this test and instead looking to private law (sub-constitutional rules governing private conduct, such as tort, property, and contract law) to determine Fourth Amendment protection.

At a moment when judges and scholars are questioning core aspects of Fourth Amendment doctrine, the time is ripe to reconsider the values Fourth Amendment law ought to serve. I advance a novel vision for Fourth Amendment law, centered not around privacy or private law, but around the value of democratic citizenship. I argue that the prevailing Fourth Amendment rules and proposed private law alternatives are both deficient in one important respect: they both fail to recognize and address the ways in which policing impacts democratic citizenship. A large body of social science research shows that coercive encounters with police tend to diminish people’s trust in government, sense of citizenship, and political participation. These citizenship harms, I argue, ought to be a central concern for Fourth Amendment law. This is necessary to realize the  Fourteenth Amendment’s guarantee of full and equal citizenship.

Under a citizenship model, when deciding whether an action is an unreasonable search or seizure, courts would consider what the action conveys about the subject’s belonging and standing in the community. To evaluate this, courts would ask how the action comports with values associated with democratic citizenship, such as participation, autonomy, anti-subordination, and proportionality.

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REBECCA E. WOLITZ

Historically, the United States has been the largest public funder of biomedical innovation in the world, yet public contributions to drug research and development (“R&D”) often fail to translate into affordable medications. The Inflation Reduction Act presents an opportunity to reconsider the relationship between public funding and public returns by requiring the consideration of federal funding as a factor in the Medicare Drug Price Negotiation Program (“MDPNP”). However, neither the statute nor agency guidance articulate clear normative principles for what the public is owed based on our contributions to drug R&D. This Article makes two key contributions. First, it offers an original scholarly analysis of the MDPNP’s “prior Federal financial support” factor, critically examining the program’s treatment of federal funding in fair drug pricing. Second, it  valuates a range of fairness principles and argues that policymakers should adopt a principle of proportionality as the default for allocating benefits from public contributions to drug R&D. By establishing a default in favor of proportional fairness, this approach ensures that public returns are meaningfully aligned with public contributions, flexibility is maintained to protect biomedical innovation, public confidence in institutions can be bolstered, and what we—the public—are owed is better secured. This Article charts a path toward a more equitable and accountable recognition of public contributions to privatized medical innovations within existing agency authority.

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ELIZABETH C. TIPPETT & JAMILLAH BOWMAN WILLIAMS

Courts assessing summary judgment motions in Title VII harassment claims commonly grant the motion on the basis that the alleged harassment is insufficiently “severe or pervasive” to meet the legal standard. This mixed-methods study empirically tests whether there is a gap between how judges and potential jurors assess the same set of facts on the severe or pervasive element of a Title VII harassment claim. We presented study participants with facts from 80 federal harassment cases. In each case, the defendant employer moved to dismiss the case, arguing that no reasonable jury would find the alleged harassment sufficiently severe or pervasive to meet the legal threshold. We provided the participants with relevant jury instructions and asked them to: (1) rate the severity or pervasiveness of the alleged harassment; (2) assess whether the plaintiff met the legal standard; and (3) discuss their reasoning.

Our results suggest a substantial divergence between judicial assessments and simulated jury assessments of the sampled cases. Judges granted summary judgment in favor of the employer or dismissed 65% of the harassment cases in the sample. By contrast, our simulated juries would have dismissed less than 20% of the very same cases. Both our quantitative and qualitative findings shed light on the source of this divergence. The difference in assessment is not due to demographic differences between judges and the mock jurors, nor is it caused by shifting judicial assessments over time. Our qualitative results indicate laypeople tend to view the fact patterns in a much more holistic manner than judges, which is consistent with guidance established by the Supreme Court. In addition, our quantitative analysis suggests courts may be selectively discounting the severity or pervasiveness of cases alleging intersectional harassment based on more than one protected characteristic. Going forward, we recommend that courts exercise far greater caution in evaluating harassment claims on summary judgment. Courts should also allow intersectional claims to be pled as a single cause of action.

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