VOLUME 169, ISSUE 6 June 2021

Articles

Taking Disability Public

Jasmine E. Harris

Antidiscrimination laws enforce the idea that no one should be forced or encouraged to hide their race, gender, sexuality, or other characteristics of their identity. So why is disability rights law the glaring exception? Other areas of antidiscrimination law have eschewed forms of enforced privacy about protected classes and, as a result, challenge privacy norms as problematic, anti-agentic, and, at times, counter to structural reform goals. In contrast, disability rights law values privacy norms to preempt discrimination; in other words, if you never reveal the information, no one can discriminate against you because of that information. This Article argues that this is a mistake, and that to truly discard stigma and false notions of disability as synonymous with incapacity, we need to fundamentally challenge and reconceive of how privacy applies to disability identity, legal status, the law’s remedial role and, in some settings, redesign legal interventions to incentivize publicity values.

Secrecy Creep

Christina Koningisor

Legal scholars have long been fascinated by the topic of government secrecy. Yet they have largely focused their attention on federal secrecy, rarely exploring secrecy in other contexts. This Article addresses this gap. It turns its attention to state and local government secrets, applying the lens of federal secrecy to the subfederal regime. In doing so, it identifies a troubling new development in state and local law: the migration of powerful federal secrecy protections, initially developed to shield the national security state, into the state and local context. I refer to this process as “secrecy creep.”

A Fragility Theory of Trademark Functionality

Matthew G. Sipe

According to functionality doctrine, trademark protection cannot be granted for any feature that is essential to a product’s use or purpose, or that affects the product’s cost or quality. But because of the placebo effect, even seemingly inert names and symbols are imbued with precisely this kind of power. In fact, a wide variety of real- world phenomena challenge the prevailing understanding of trademark functionality, from the social uses of high-fashion marks to the cost reductions enabled by certification marks. More fundamentally, a valuable trademark of any kind should act to reduce search costs for consumers and improve quality through reputation. And yet, rather than leading to invalidation, all of these well-documented functionalities are apparently tolerated by trademark law—sometimes merely ignored, but often celebrated explicitly.

Comments

Beyond Elections: Abolitionist Lessons for the Law of Democracy

Kate Bass

The prison abolition movement, building on a long history of abolition in the United States, is articulating a vision of democracy that centers the lived experiences of people, particularly marginalized communities. Requiring more than legal standing and a secure right to vote, the abolitionist view of democracy calls for economic and civic standing, community self-determination, and equality. This view starkly contrasts with the dominant concept of democracy in the legal field most attentive to democratic concerns—the law of democracy, which defines democracy largely according to electoral rules and processes. This Comment presents an initial comparison of these two visions of democracy. When considered together, the abolitionist concept of democracy reveals the insufficiency of formalistic approaches to build a democracy that is deep, just, and experienced as legitimate by the governed. Looking to abolitionists’ concepts of state can deepen public law scholarship and inform the choices of democracy practitioners by enriching their advocacy in the electoral realm and widening their focus beyond elections.

A Prosecutorial Solution to the Criminalization of Homelessness

Andrew I. Lief

More than one-third of the 580,000 homeless people in the United States are unsheltered. This population includes those who sleep on the street, in cars, in abandoned buildings, and in other places not intended for human housing. Some unsheltered homeless individuals choose to forego sleeping in a shelter, perhaps out of concern for their safety or because their work prevents them from abiding by a shelter’s curfew. Others, meanwhile, are forced to sleep in public spaces because of insufficient shelter capacity.