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Reynolds Revisited: The Original Meaning Of Reynolds V. United States And Free Exercise After Fulton, Clark B. Lombardi

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This Article calls for a profound reevaluation of the stories that are being told today about the Supreme Court’s free exercise jurisprudence starting with the Court’s seminal 1879 decision in Reynolds v. United States and proceeding up to the present day. Scholars and judges today agree that the Supreme Court in Reynolds interpreted the Free Exercise Clause of the First Amendment to protect only religious belief and not religiously motivated action. All casebooks today embrace this interpretation of the case, and the Supreme Court has regularly endorsed it over the past twenty years, most recently in 2022. However, this Article …

Distinguishing Privacy Law: A Critique Of Privacy As Social Taxonomy, María P. Angel, Ryan Calo

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What distinguishes privacy violations from other harms? This has proven a surprisingly difficult question to answer. For over a century, privacy law scholars labored to define the elusive concept of privacy. Then they gave up. Efforts to distinguish privacy were superseded at the turn of the millennium by a new approach: a taxonomy of privacy problems grounded in social recognition. Privacy law became the field that simply studies whatever courts or scholars talk about as related to privacy.

Decades into privacy as social taxonomy, the field has expanded to encompass a broad range of information-based harms—from consumer manipulation to algorithmic …

The Right To Access Information On Land Recovery, Compensation, Assistance, And Resettlement: Case Study, City Of Can Tho, Vietnam, Hien Trung Phan, Hugh D. Spitzer

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Land recovery in Vietnam is the process of compulsory transfer of land use rights from the hands of land users to the hands of the State by way of local government agencies. Land recovery frequently raises issues of compensation, assistance, and resettlement. It is vital for affected land users and the general public to have access to reports on land recovery, compensation, and resettlement. The article describes a limited survey of Vietnamese people whose land was subject to government recovery and evaluates their access to and understanding of information at each stage of the land recovery process. The study revealed …

Telegraph, Telephone And The Internet: The Making Of The Symbiotic Model Of Surveillance States, Dongsheng Zang

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In the early 2000s, shortly before the September 11 attacks, Daniel J. Solove noted that computer databases in the United States were controlled by public as well as private bureaucracies. In that sense, Solove argued, the "Big Brother" metaphor "fails to capture the most important dimension of the database problem." In his 2008 Lockhart lecture, constitutional law scholar Jack M. Balkin argued that the United States has gradually transformed from a welfare and national security state to a National Surveillance State: "a new form of governance that features the collection, collation, and analysis of information about populations both in the …

Coming Of Age In The Eyes Of The Law: Theconflict Between Miranda, J.D.B., And Puberty, David M. N. Garavito

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Everyone knows that going through puberty is associated with a multitude of changes: physical, mental, hormonal, etc. Fewer people know that when and how fast one goes through puberty can also be associated with changes to one’s legal rights. The Supreme Court of the United States held, in the landmark case of J.D.B. v. North Carolina, that there were many “commonsense conclusions” that could be drawn from how a child’s age would affect their interactions with law enforcement. In that case, the Court was deciding whether age should affect whether a child was considered “in custody” of the police, granting …

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

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Drawing cases from two related areas of law-fingerprint and DNA (deoxyribonucleic acid) data-this Article proposes a modified framework, built on the Balkin-Levinson emphasis on national politics: First, national politics understood as partisan rivalry cannot account for what I call doctrinal lock-in in this Article, where I will demonstrate that in different stages of American politics-the Lochner era, the New Deal era, and Civil Rights era-courts across the nation ruled predominantly in favor of public data collectors-state and federal law enforcement in fingerprint cases. From the 1990s, when DNA data became hot targets of law enforcement, the United States Supreme Court …

Conditions Of Participation: Incorporating The History Of Hospital Desegregation, Sallie Sanford

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Our students ought to know about the history of formal hospital segregation and desegregation. To that end, this article urges those who teach foundational health law and policy courses to do three things. First, to teach the Simkins case. Second, to swap out the usual Medicare signing ceremony picture for one that includes W. Montague Cobb, M.D., Ph.D. Third, to highlight how the implementation of that program for the elderly led, in a matter of months, to the desegregation of hospitals throughout the country.

Due Process Deportations, Angelica Chazaro

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Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: More lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, the argument goes, federally funded counsel for immigrants would improve due process and fairness, as well as make immigration enforcement more efficient. This Article argues the opposite: Federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts— and thus are impervious to immigration lawyering. Even for those who make it …

The Hidden Harms Of Privacy Penalties, Mary D. Fan

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How to frame privacy penalties to protect our personal information is an important question as demands for legislation and proposals proliferate. The predominant assumption in calls for a comprehensive consumer privacy regime is that regulation and penalties arm the consumer David against Goliath businesses. Missing in the focus on powerful companies is attention to the potential harms of expanding privacy penalties for small-fry individuals and entities, especially from disfavored or marginalized groups. This article is the first to illuminate the regressive risks of privacy penalties, showing how broad privacy penalties can become tools for harassment of small businesses and individuals …

Revolt Against The U.S. Hegemony: Judicial Divergence In Cyberspace, Dongsheng Zang

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This Article contributes to our understanding of the current state of cyber law. The global perspective demonstrates an almost uniform response to the U.S. law in cyberspace from all of America's major trading partners. In the past, comparative studies tended to focus on a single jurisdiction-typically, the European Union-and compared it with the United States. This approach, informative as it was, significantly understated the gravity of the differences between that jurisdiction and the United States. Fundamentally, it was based on an American-centric outlook with primary interests in building convergence models. In cyberspace, however, this is simply not helpful. In recent …

Violence Everywhere: How The Current Spectacle Of Black Suffering, Police Violence, And The Violence Of Judicial Interpretation Undermine The Rule Of Law, David B. Owens

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No abstract provided.

Terrified By Technology: How Systemic Bias Distorts U.S. Legal And Regulatory Responses To Emerging Technology, Steve Calandrillo, Nolan Kobuke Anderson

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Americans are becoming increasingly aware of the systemic biases we possess and how those biases preclude us from collectively living out the true meaning of our national creed. But to fully understand systemic bias we must acknowledge that it is pervasive and extends beyond the contexts of race, privilege, and economic status. Understanding all forms of systemic bias helps us to better understand ourselves and our shortcomings. At first glance, a human bias against emerging technology caused by systemic risk misperception might seem uninteresting or unimportant. But this Article demonstrates how the presence of systemic bias anywhere, even in an …

Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer

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An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” …

Election Law And Election Subversion, Lisa Marshall Manheim

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Scholars of American election law used to take the rule of law as a given. The legal system, while highly imperfect, appeared sturdy, steady, and functional. Recent election cycles—culminating in dramatic attempts at election subversion—have revealed this assumption beginning to break down. Without the rule of law as a dependable constant, the study of election law quickly expands. Legal experts now are simultaneously occupied with: first, the substance of election laws; second, the design of election institutions; and third, the threat of participants unlawfully undermining elections from within. This Essay identifies and contextualizes the rule-of-law pivot that is reflected in …

"Benevolent Paternalism" Revisited, Daniel H. Foote

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Nearly thirty years ago, in an article entitled “The Benevolent Paternalism of Japanese Criminal Justice” (Benevolent Paternalism), I sought to set out a model for the Japanese criminal justice system, the “benevolent paternalism” model. As the label reflects, I viewed the Japanese criminal justice system as consisting of two sides, a “paternalistic” side and a “benevolent” side. This essay begins with a short summary of the model; it then turns to an examination of major developments in the intervening three decades and considers whether the model remains relevant today.

Antiracism, Reflection, And Professional Identity, Monte Mills, Eduardo R.C. Capulong, Andrew King-Ries

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Intent on more systematically developing the emerging professional identities of law students, the professional identity formation movement is recasting how we think about legal education. Notably, however, the movement overlooks the structural racism imbedded in American law and legal education. While current models of professional development value diversity and cross-cultural competence, they do not adequately prepare the next generation of legal professionals to engage in the sustained work of interrupting and overthrowing race and racism in the legal profession and system. This article argues that antiracism is essential to the profession’s responsibility to serve justice and therefore key to legal …

The Automated Administrative State: A Crisis Of Legitimacy, Ryan Calo, Danielle Keats Citron

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The legitimacy of the administrative state is premised on our faith in agency expertise. Despite their extra-constitutional structure, administrative agencies have been on firm footing for a long time in reverence to their critical role in governing a complex, evolving society. They are delegated enormous power because they respond expertly and nimbly to evolving conditions. In recent decades, state and federal agencies have embraced a novel mode of operation: automation. Agencies rely more and more on software and algorithms in carrying out their delegated responsibilities. The automated administrative state, however, is demonstrably riddled with concerns. Legal challenges regarding the denial …

Awakening The American Jury: Did The Killing Of George Floyd Alter Juror Deliberations Forever?, Tamara F. Lawson

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In the summer of 2020, the witnessing of George Floyd's death triggered an outpouring of public expression far beyond other cases in modern times. While the experience led some to advocate for reform and participate in antiracism rallies, marches, and campaigns, it also forced many others into internal reflection, awareness, and awakening to the knowledge of a lived experience with police different from their own. The gruesome realities of the video were irreconcilable with those prior beliefs and did not comport with any moral or legal standards of dignity. Prior to witnessing George Floyd's death on video at the hands …

An Innovative Approach To Movement Lawyering: An Immigrant Rights Case Study, Christine N. Cimini, Doug Smith

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The role of lawyers in social change movements is more important than ever as communities mobilize around systemic racism, police killings, xenophobia, rising unemployment, and widening economic inequality. The immigrant rights movement is a critical part of these efforts to foment change. This Article leverages an in-depth case study – the rise and fall of the controversial immigration enforcement program known as Secure Communities - to explore how lawyers work as part of a community to challenge power and effectuate change. The dismantling of Secure Communities was widely credited to a relentless campaign to thwart the government’s then-expanding deportation strategy. …

The Rise Of Law And The Fall Of Circular 230: Tax Lawyer Professional Standards, 1985-2015, Michael Hatfield

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This third article focuses on the two issues that dominated discussions of professional responsibility standards for tax lawyers in the 1985-2015 period: return position standards and tax shelter opinions. It opens with consideration of the ABA’s 1965 opinion providing “reasonable basis” as the standard for undisclosed return positions, and then traces the response to that opinion as the response prods the development of the 1985 replacement with its “realistic possibility of success” standard. The Article documents the extensive interaction between Congress, the Treasury Department, and the tax bar over the next 30 years during which penalties are studied and revised …

Substance Use Disorder Discrimination And The Cares Act: Using Disability Law To Inform Part 2 Rulemaking, Kelly K. Dineen, Elizabeth Pendo

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Substance use disorder (SUD) is a chronic health condition—like people with other chronic health conditions, people with SUDs experience periods of remission and periods of exacerbation or recurrence. Unlike people with most other chronic conditions, people with SUDs may be more likely to garner law enforcement attention than medical attention during a recurrence. They are also chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. The COVID-19 pandemic has had devastating consequences for people with SUDs, who are at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions …

Presidential Control Of Elections, Lisa Marshall Manheim

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An election that is “disputed” lacks two qualities after Election Day: a clear winner and a concession. These elections instead depend on legal processes — recounts, court proceedings, and more — for resolution. As a result, when a sitting President, running for reelection, becomes immersed in a disputed presidential election, he potentially enjoys an advantage over his opponent. He can attempt to exploit the powers of the presidency to push these legal proceedings in his favor. As a practical matter, this advantage can be formidable. A sitting president can resort to his extraordinary bully pulpit, for example, to influence public …

Bridges To A New Era: A Report On The Past, Present, And Potential Future Of Tribal Co-Management On Federal Public Lands, Monte Mills, Martin Nie

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Deep ancestral and traditional connections tie many Native Nations to the federal government’s public lands. The removal of these lands from indigenous control, their acquisition by the federal government, and the federal government’s approach to their management are largely premised upon the erasure or marginalization of those connections. Both physically and legally, Indian tribes have been removed from the landscapes they occupied since time immemorial. Rather than centering, honoring, and using those connections, the current discussion of tribal co-management of federal public lands is mostly bereft of this full legal and historical context.

Compounding these limitations is the considerable discretion …

The Right To Benefit From Big Data As A Public Resource, Mary D. Fan

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The information that we reveal from interactions online and with electronic devices has massive value—for both private profit and public benefit, such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of …

The End Of Deportation, Angélica Cházaro

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This Article introduces to legal scholarship a new horizon for pro-immigrant scholarship and advocacy: deportation abolition. The ever-present threat of deportation shapes the daily lives of noncitizens. Instead of aiming for a pathway to citizenship, most noncitizens must now contend with dodging the many pathways to banishment. Despite growing threats to immigrant survival, most pro-immigrant scholarship and advocacy that aims to reduce migrant suffering assumes deportation as inevitable. The focus remains on improving individual outcomes by aligning the process of deportation with due process and the rule of law. But considered from the point of view of those facing deportation, …

Justice System Reform And Internationalization, Daniel H. Foote

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As discussant. normally my role would be to offer trenchant and perceptive critiques of each of the three main reports. those by Professors Takamizawa. Matsuo. and SuamL Those reports are broad in scope, both geographical and historical; each report is outstanding: and each provides much food for thought. Yet even if time and space permitted, I myself lack sufficient knowledge regarding China. Southeast Asia and Europe to provide a thorough critique. Instead. in this essay I will shift the focus back to Japan and examine various respects in which the justice system reforms have sought to promote internationalization.

Tiptoeing Through The Landmines: The Evolution Of States' Legal Ethics Authority Regarding Representing Cannabis Clients, Karen Boxx

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No abstract provided.

Privacy Law's Indeterminacy, Ryan Calo

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American legal realism numbers among the most important theoretical contributions of legal academia to date. Given the movement’s influence, as well as the common centrality of certain key figures, it is surprising that privacy scholarship in the United States has paid next to no attention to the movement. This inattention is unfortunate for several reasons, including that privacy law furnishes rich examples of the indeterminacy thesis—a key concept of American legal realism—and because the interdisciplinary efforts of privacy scholars to explore extra-legal influences on privacy law arguably further the plot of legal realism itself

Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Monte Mills, Eduardo R.C. Capulong, Andrew King-Ries

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Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed white supremacist reaction to the nation’s first black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore the roots …

Uncompromising Hunger For Justice: Resistance, Sacrifice, And Latcrit Theory, Brenda Williams, Edwin Lindo, Marc-Tizoc González

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In this Article, three law professors report on and theorize a nonviolent direct-action campaign of the kind discussed by Dr. King in his famous Letter from a Birmingham Jail. Using the basic steps of the nonviolent campaign as an organizing framework, they analyze and report on the 18-day hunger strike by the Frisco 5 (a.k.a., Frisco5). This direct action protested the extrajudicial killings of Amilcar Perez-Lopez, Alex Nieto, Luis Góngora-Pat, and Mario Woods by San Francisco Police Department (SFPD) officers and advocated for institutional change to reduce the risk of homicides against persons with similarly racialized minority-group identities. Two weeks …