Digital Commons Network^™

Computationally Assessing Suspicion, Wesley M. Oliver

Law Faculty Publications

Law enforcement officers performing drug interdiction on interstate highways have to decide nearly every day whether there is reasonable suspicion to detain motorists until a trained dog can sniff for the presence of drugs. The officers’ assessments are often wrong, however, and lead to unnecessary detentions of innocent persons and the suppression of drugs found on guilty ones. We propose a computational method of evaluating suspicion in these encounters and offer experimental results from early efforts demonstrating its feasibility. With the assistance of large language and predictive machine learning models, it appears that judges, advocates, and even police officers could …

Mistick Speaks: A Collection Of Tribune Review Columns, 2019-2023, Joseph Sabino Mistick

Law Faculty Publications

No abstract provided.

Evidence Rules For Decarceration, Erin Collins

Law Faculty Publications

Two observations about the operation of the criminal legal system are so widely accepted that they are seem undeniable: First, it is a system of pleas, not trials. Second, the system is too punitive and must be reformed. One could easily think, therefore, that the Rules of Evidence, which apply intentionally and explicitly only to the adjudicatory phase of criminal procedure, have nothing to do with the solution. And legal scholarship focusing on decarceration largely reflects this assumption: while many have explored reforms that target front end system actors and processes that lead people into the system (e.g. police, prosecutors, …

Biden, Bennet, And Bipartisan Federal Judicial Selection, Carl Tobias

Law Faculty Publications

"The U.S. Constitution plainly assigns to the Senate the profound duties of rendering critical advice and consent related to all specific federal judicial nominees whom the President selects. The dynamic roles of senators who directly represent jurisdictions where vacant posts materialize have perennially been crucial to appropriately discharging these essential responsibilities. Senators identify excellent candidates—individuals who possess diversity in terms of ethnicity, gender, sexual orientation, independence, experience, and ideology, as well as the character and measured judicial temperament to be exceptional jurists—assemble complete applications, comprehensively review the prospects, and interview choices whom the senators duly recommend to the President. After …

Parens Patriae After The Pandemic, Meredith Johnson Harbach

Law Faculty Publications

The COVID-19 pandemic prompted extraordinary state action to protect American children. Acting in its longstanding role as parens patriae, the state stepped in to protect children and their families from the ravages of the pandemic as well as from the dramatic upheaval it precipitated. This Article will evaluate the state’s pandemic response vis-à-vis children and their families, mining the experience for lessons learned and possible ways forward. Specifically, this project will argue that the state’s pandemic response represented a departure from the state’s conventional approach to parens patriae. Conventional practice prior to the pandemic was characterized by a state model …

Technology - Revealing Or Framing The Truth? A Jurisprudential Debate, Dana Neacsu

Law Faculty Publications

Technology is so much more than a prosthetic. But how much more? And what else is it? In the legal realm, its role is not yet clear. Such a lack of elucidation becomes problematic, especially when technology has the ability to convert assumptions into facts, and it takes on a truth-making, rather than a mere truth-revealing mission. This Article argues that it is problematic to enable technology to stand in for reflective thinking, and calls attention to the fact that evidentiary rules enable technology to decide what can be proven, ergo what truth is. Technology is a fork in the …

How Biden Could Keep Filling The Federal Circuit Court Vacancies, Carl Tobias

Law Faculty Publications

In October 2020, Democratic presidential nominee Joe Biden speculated that the fifty-four talented, extremely conservative, and exceptionally young, appellate court judges whom then-President Donald Trump and two relatively similar Grand Old Party (GOP) Senate majorities appointed had left the federal appeals courts “out of whack.” Problematic were the many deleterious ways in which Trump and both of the upper chamber majorities in the 115th and 116th Senate undermined the courts of appeals, which are the courts of last resort for practically all lawsuits, because the United States Supreme Court hears so few appeals. The nomination and confirmation processes which Trump …

Abolishing The Evidence-Based Paradigm, Erin Collins

Law Faculty Publications

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms. …

Debt Governance, Wealth Management, And The Uneven Burdens Of Child Support, Allison Anna Tait

Law Faculty Publications

Child support is a ubiquitous kind of debt, common to all income and wealth levels, with data showing that approximately 30% of the U.S. adult population has either been subject to paying child support or has received it. Across this field of child support debt, however, unpaid obligations look different for everyone, and in particular the experiences around child support debt diverge radically for low-income populations and high-wealth ones. On the low-income end of the spectrum, child support debt is a sophisticated and adaptive governance technology that disciplines and penalizes those living in or near poverty. Being in child support …

Crack Taxes And The Dangers Of Insidious Regulatory Taxes, Hayes R. Holderness

Law Faculty Publications

An unheralded weapon in the War on Drugs can be found in state tax codes: many states impose targeted taxes on individuals for the possession and sale of controlled substances. These “crack taxes” provide state officials with a powerful means of sanctioning individuals without providing those individuals the protections of the criminal law. Further, these taxes largely escape public scrutiny, which can contribute to overregulation and uneven enforcement.

The controlled substance taxes highlight the allure to lawmakers of using tax law to regulate behavior, but also the potential dangers of doing so. Surprisingly, the judiciary has an underappreciated role in …

Filling Lower Court Vacancies In Congress' Lame Duck Session, Carl Tobias

Law Faculty Publications

In this midterm election year of 2022, the nation’s divided political parties are in a battle royale to win the exceedingly close Senate majority. One important explanation for the fight is that the party which assumes the next Senate majority will necessarily have considerable power to affect the confirmation of federal judges. For example, during Donald Trump’s presidency, Republicans controlled the Senate; therefore, the chief executive and the upper chamber proposed and confirmed fifty-four accomplished,
extremely conservative, young appeals court, and 174 district court, jurists. The Republican White House and Senate majority confirmed judges by rejecting or deemphasizing the rules …

The Problem Of Problem-Solving Courts, Erin Collins

Law Faculty Publications

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively — at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

Entrenched Racial Hierarchy: Educational Inequality From The Cradle To The Lsat, Kevin Woodson

Law Faculty Publications

For my contribution to this special issue of the Minnesota Law Review, I will attempt to situate the problem of black underrepresentation at America’s law schools within the broader context of racial hierarchy in American society. The former has generated an extensive body of legal scholarship and commentary, centering primarily on the racial impact of law schools’ admissions criteria and procedures, particularly the substantial weight placed upon the Law School Admissions Test (“LSAT”). This focus is understandable: given the substantial racial disparities in LSAT performance and the test’s relatively limited value in predicting academic and professional outcomes, it makes sense …

Structuring Techlaw, Rebecca Crootof, Bj Ard

Law Faculty Publications

Technological breakthroughs challenge core legal assumptions and generate regulatory debates. Practitioners and scholars usually tackle these questions by examining the impacts of a particular technology within conventional legal subjects — say, by considering how drones should be regulated under privacy law, property law, or the law of armed conflict. While individually useful, these siloed analyses mask the repetitive nature of the underlying questions and necessitate the regular reinvention of the regulatory wheel. An overarching framework — one which can be employed across technologies and across subjects — is needed.

The fundamental challenge of tech-law is not how to best regulate …

Three Observations About The Worst Of The Worst, Virginia-Style, Corinna Lain

Law Faculty Publications

Much could be said about Virginia’s historic decision to repeal the death penalty, and Professor Klein’s essay provides a wonderful starting point for any number of important discussions. We could talk about how the decision came to be. Or why the move is so momentous. Or what considerations were particularly important in the decision‑making process. Or where we should go from here. But in this brief comment, I’ll be focusing not on the how, or the why, or the what, or the where, but rather on the who. Who are condemned inmates, both generally and Virginia‑style?

Filling The California Federal District Court Vacancies, Carl Tobias

Law Faculty Publications

"President Donald Trump frequently argues that confirming federal appellate judges constitutes his quintessential success. The President and the Republican Senate majority have dramatically eclipsed appeals court records by appointing fifty-one conservative, young, and capable appellate court nominees, which leaves merely one vacancy across the country. Nonetheless, these approvals have imposed costs, especially among the plentiful district courts that address seventy-four openings in 677 judicial positions.

The most striking example is the four California districts, which realize seventeen pressing vacancies among sixty posts. The Administrative Office of the United States Courts (AO), the federal judiciary’s administrative arm, designates all of them …

The Ripple Effects Of Gideon: Recognizing The Human Right To Counsel In Civil Adversarial Proceedings, Jonathan K. Stubbs

Law Faculty Publications

Procedural fairness and equal protection were the core of Gideon’s reasoning for a right to counsel for indigent criminal defendants. Under the same constitutional values, there should be a right to legal assistance of counsel for indigent civil litigants, especially in adversarial proceedings. This Article outlines the constitutional basis for a civil right to counsel. Further, it stresses the need for legislation to address the massive shortfall in legal representation available to indigent persons in the United States. Recognition of civil Gideon as part of the Constitution’s promise of justice accommodates a moral revolution. It exemplifies a shift in …

Ai Report: Humanity Is Doomed. Send Lawyers, Guns, And Money!, Ashley M. London

Law Faculty Publications

AI systems are powerful technologies being built and implemented by private corporations motivated by profit, not altruism. Change makers, such as attorneys and law students, must therefore be educated on the benefits, detriments, and pitfalls of the rapid spread, and often secret implementation of this technology. The implementation is secret because private corporations place proprietary AI systems inside of black boxes to conceal what is inside. If they did not, the popular myth that AI systems are unbiased machines crunching inherently objective data would be revealed as a falsehood. Algorithms created to run AI systems reflect the inherent human categorization …

"Cyborg Justice" And The Risk Of Technological-Legal Lock-In, Rebecca Crootof

Law Faculty Publications

Although Artificial Intelligence (AI) is already of use to litigants and legal practitioners, we must be cautious and deliberate in incorporating AI into the common law judicial process. Human beings and machine systems process information and reach conclusions in fundamentally different ways, with AI being particularly ill-suited for the rule application and value balancing required of human judges. Nor will “cyborg justice”—hybrid human/AI judicial systems that attempt to marry the best of human and machine decisionmaking and minimize the drawbacks of both—be a panacea. While such systems would ideally maximize the strengths of human and machine intelligence, they might also …

Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane

Law Faculty Publications

A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, …

Madison And The Mentally Ill: The Death Penalty For The Weak, Not The Worst, Corinna Barrett Lain

Law Faculty Publications

Time and again, we are told that the death penalty is for the worst of the worst offenders, so how is it that the severely mentally ill end up in the snare of the capital justice system in the first place? This essay — a transcribed (and slightly edited) version of a keynote speech given at Regent University’s 2018 law review symposium on mental health and the law — endeavors to answer that question. The journey starts with deinstitutionalization of the severely mentally ill in the 1970s, and reinstitutionalization through the criminal justice system thereafter. It then turns to the …

President Donald Trump And Federal Bench Diversity, Carl W. Tobias

Law Faculty Publications

President Donald Trump constantly reminds United States citizens about the myriad circuit and district court appointments that his White House is making to the federal judiciary. Last September, Trump proposed the seventh “wave,” which included three people of color among sixteen judicial nominees. This wave permitted the administration to triple the number of ethnic minority picks whom it had selected, which means that the Executive Branch has proffered ten persons of color in appeals court and district court submissions, yet none is a lesbian, gay, bisexual, or transgender (LGBT) individual. Nevertheless, a problematic pattern, which implicates a stunning lack of …

The President, Prosecutorial Discretion, Obstruction Of Justice, And Congress, Henry L. Chambers Jr.

Law Faculty Publications

The executive power of the United States is vested in the President of the United States. That power includes prosecutorial discretion—the power to prosecute or decline to prosecute. Consequently, the President would appear to have the constitutional authority to initiate or end a federal criminal prosecution or investigation. This would seem particularly so in an era in which executive power arguably continues to expand. Nonetheless, an ongoing debate exists regarding whether a President obstructs justice when he attempts to end a criminal investigation for improper reasons. Those who argue in favor of the possibility of obstruction of justice suggest that …

Gender Disparity In Law Review Citation Rates, Christopher A. Cotropia

Law Faculty Publications

Gender disparity in scholarly influence – measured in terms of differential citation to academic work – has been widely documented. The weight of the evidence is that, in many fields of academic inquiry, papers authored by women receive fewer citations than papers authored by men. To investigate whether a similar gender disparity in scholarly influence exists in legal studies we analyze the impact of gender on citation to articles published in top 100 law reviews between 1990 and 2010. We find evidence of gender disparity in citation rates, but in surprising contrast to observations made in other disciplines, we observe …

Punishing Risk, Erin Collins

Law Faculty Publications

Actuarial recidivism risk assessments-statistical predictions of the likelihood of future criminal behavior-drive a number of core criminal justice decisions, including where to police, whom to release on bail, and how to manage correctional institutions. Recently, this predictive approach to criminal justice entered a new arena: sentencing. Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country. This enthusiasm is understandable. Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration.

Yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial …

Quelling The Silver Tsunami: Compassionate Release Of Elderly Offenders, Jalila Jefferson-Bullock

Law Faculty Publications

No abstract provided.

30 Tips For Excellence In Juvenile Defense, Julie Ellen Mcconnell

Law Faculty Publications

This article for the Virginia Association of Criminal Defense Lawyers newsletter provides advice on representing juvenile clients.

Clemency And The Administration Of Hope, Erin R. Collins

Law Faculty Publications

In 2014, President Obama announced his intention to ‘‘restor[e] fundamental ideals of justice and fairness’’ to the criminal justice system by exercising his executive clemency power to commute sentences of those who had ‘‘already served their time and paid their debt to society.’’ Soon thereafter, the Department of Justice (DOJ) specified six criteria it would use to prioritize applications. The primary targets of these criteria were the casualties of the war on drugs: people sentenced to draconian sentences for nonviolent drug offenses, some of which involved less than a handful of narcotics. Most of these individuals had exhausted any available …

Status Courts, Erin R. Collins

Law Faculty Publications

This Article identifies and analyzes a new type of specialized "problemsolving" court: status courts. Status courts are criminal or quasicriminal courts dedicated to defendants who are members of particular status groups, such as veterans or girls. They differ from other problemsolving courts, such as drug or domestic violence courts, in that nothing about the status court offender or the offense he or she committed presents a systemic "problem" to be "solved." In fact, status courts aim to honor the offender's experience and strengthen the offender's association with the characteristic used to sort him or her into court.

This Article positions …

International Adjudicative Bodies, Chiara Giorgetti

Law Faculty Publications

The past fifty years have seen a tremendous rise in international litigation. There are more parties who are more prone to use international law mechanisms to resolve their disputes, and more international actors have more forums available to them to which they can bring their disputes. Indeed, the multifaceted growth of international dispute resolution is one of international law's most important and interesting recent developments.

At the heart of this development are international adjudicative bodies, a diverse group of international bodies that have a common dispute settlement function, the outcome of which is binding on the parties. This chapter examines …