Law Commons^™

When Originalism Failed: Lessons From Tort Law, Donald G. Gifford, Richard C. Boldt, Christopher J. Robinette

Faculty Scholarship

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first …

Teaching Critical Use Of Legal Research Technology, Jennifer E. Chapman

Faculty Scholarship

No abstract provided.

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Criminalization And Normalization: Some Thoughts About Offenders With Serious Mental Illness, Richard C. Boldt

Faculty Scholarship

Response to Professor E. Lea Johnston, Reconceptualizing Criminal Justice Reform for Offenders with Serious Mental Illness

Abstract

While Professor Johnston is persuasive that clinical factors such as diagnosis and treatment history are not, in most cases, predictive by themselves of criminal behavior, her concession that those clinical factors are associated with a constellation of risks and needs that are predictive of criminal system involvement complicates her efforts to maintain a clear boundary between the criminalization theory and the normalization thesis. Indeed, Professor Johnston’s article contains a brief section in which she identifies “possible justifications” for the specialized programs that are …

Contract's Influence On Feminism And Vice Versa, Martha M. Ertman

Faculty Scholarship

Feminist legal theory has both embraced and rejected contract. While contract-based conceptual and doctrinal tools have improved women’s economic and social status, feminists also critique contract-based reforms for colluding with hierarchies of gender, race and class. This chapter charts influential work on both sides of the contract debate and identifies a third approach that sees contract as a mechanism for law to move away from a hierarchal regime by stopping at a contractual way station en route to a more equal system of public ordering. It concludes by identifying ways that feminist legal theorists have injected feminist insights into traditional …

Teaching Professional Responsibility Through Theater, Michael Millemann, Elliott Rauh, Robert Bowie Jr.

Faculty Scholarship

This article is about ethics-focused, law school courses, co-taught with a theater director, in which students wrote, produced and performed in plays. The plays were about four men who, separately, were wrongfully convicted, spent decades in prison, and finally were released and exonerated, formally (two) or informally (two).

The common themes in these miscarriages of justice were that 1) unethical conduct of prosecutors (especially failures to disclose exculpatory evidence) and of defense counsel (especially incompetent representation) undermined the Rule of Law and produced wrongful convictions, and 2) conversely, that the ethical conduct of post-conviction lawyers and law students helped to …

Race Decriminalization And Criminal Legal System Reform, Michael Pinard

Faculty Scholarship

There is emerging consensus that various components of the criminal legal system have gone too far in capturing and punishing masses of Black men, women, and children. This evolving recognition has helped propel important and pathbreaking criminal legal reforms in recent years, with significant bipartisan support. These reforms have targeted the criminal legal system itself. They strive to address the pain inflicted by the system. However, by concerning themselves solely with the criminal legal system, these reforms do not confront the reality that Black men, women, and children will continue to be devastatingly overrepresented in each stitch of the system. …

Race, Surveillance, Resistance, Chaz Arnett

Faculty Scholarship

The increasing capability of surveillance technology in the hands of law enforcement is radically changing the power, size, and depth of the surveillance state. More daily activities are being captured and scrutinized, larger quantities of personal and biometric data are being extracted and analyzed, in what is becoming a deeply intensified and pervasive surveillance society. This reality is particularly troubling for Black communities, as they shoulder a disproportionate share of the burden and harm associated with these powerful surveillance measures, at a time when traditional mechanisms for accountability have grown weaker. These harms include the maintenance of legacies of state …

Teaching Justice-Connectivity, Michael Pinard

Faculty Scholarship

This Essay conveys the importance of building in law students the foundation to recognize the various systems, institutions, and conditions that often crash into the lives of their clients, as well as the residents of the communities that are just outside law schools’ doors. It does so through proposing a teaching model that I call Justice-Connectivity. This model aims for students to understand and be humbled by the ways in which different institutions, systems, and strands of law converge upon, oppress, isolate, and shun individuals, families, and communities. The ultimate teaching lesson is that individuals, families, and communities are often …

Prediction, Persuasion, And The Jurisprudence Of Behaviorism, Frank A. Pasquale, Glyn Cashwell

Faculty Scholarship

No abstract provided.

A Rule Of Persons, Not Machines: The Limits Of Legal Automation, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

The Automated Public Sphere, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Muscle Memory And The Local Concentration Of Capital Punishment, Lee B. Kovarsky

Faculty Scholarship

No abstract provided.

The Spectrum Of Control: A Social Theory Of The Smart City, Jathan Sadowski, Frank A. Pasquale

Faculty Scholarship

There is a certain allure to the idea that cities allow a person to both feel at home and like a stranger in the same place. That one can know the streets and shops, avenues and alleys, while also going days without being recognized. But as elites fill cities with “smart” technologies—turning them into platforms for the “Internet of Things” (IoT): sensors and computation embedded within physical objects that then connect, communicate, and/or transmit information with or between each other through the Internet—there is little escape from a seamless web of surveillance and power. This paper will outline a social …

Victim Or Thug? Examining The Relevance Of Stories In Cases Involving Shootings Of Unarmed Black Males, Sherri Keene

Faculty Scholarship

No abstract provided.

Race, Place And Historic Moment – Black And Japanese American World War Ii Veterans: The G.I. Bill Of Rights And The Model Minority Myth, Taunya L. Banks

Faculty Scholarship

No abstract provided.

Marital Contracting In A Post-Windsor World, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Four Futures Of Legal Automation, Frank A. Pasquale, Glyn Cashwell

Faculty Scholarship

Simple legal jobs (such as document coding) are prime candidates for legal automation. More complex tasks cannot be routinized. So far, the debate on the likely scope and intensity of legal automation has focused on the degree to which legal tasks are simple or complex. Just as important to the legal profession, however, is the degree of regulation or deregulation likely in the future.

Situations involving conflicting rights, unique fact patterns, and open-ended laws will remain excessively difficult to automate for an extended period of time. Deregulation, however, may effectively strip many persons of their rights, rendering once-hard cases simple. …

Poor, Black And "Wanted": Criminal Justice In Ferguson And Baltimore, Michael Pinard

Faculty Scholarship

No abstract provided.

Capital's Offense: Law's Entrenchment Of Inequality, Frank A. Pasquale

Faculty Scholarship

Reviewing Thomas Piketty, Capital in the Twenty-First Century (Harvard University Press, 2014)

Piketty’s Capital in the Twenty-First Century is a rare scholarly achievement. It weaves together description and prescription, facts and values, economics, politics, and history, with an assured and graceful touch. So clear is Piketty’s reasoning, and so compelling the enormous data apparatus he brings to bear, that few can doubt he has fundamentally altered our appreciation of the scope, duration, and intensity of inequality. This review explains Piketty’s analysis and its relevance to law and social theory, drawing lessons for the re-emerging field of political economy.

The university …

Interview On The Black Box Society, Lawrence Joseph, Frank A. Pasquale

Faculty Scholarship

Hidden algorithms drive decisions at major Silicon Valley and Wall Street firms. Thanks to automation, those firms can approve credit, rank websites, and make myriad other decisions instantaneously. But what are the costs of their methods? And what exactly are they doing with their digital profiles of us?

Leaks, whistleblowers, and legal disputes have shed new light on corporate surveillance and the automated judgments it enables. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only …

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Faculty Scholarship

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Still Drowning In Segregation: Limits Of Law In Post-Civil Rights America, Taunya L. Banks

Faculty Scholarship

Approximately 40% of the deaths attributed to Hurricane Katrina in 2005 were caused by drowning. Blacks in the New Orleans area accounted for slightly more than one half of all deaths. Some of the drowning deaths were preventable. Too many black Americans do not know how to swim. Up to seventy percent of all black children in the United States have no or low ability to swim. Thus it is unsurprising that black youth between 5 and 19 are more likely to drown than white youths of the same age. The Centers for Disease Control concludes that a major factor …

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …

Manipulating Fate: Medical Innovations, Ethical Implications, Theatrical Illuminations, Karen H. Rothenberg, Lynn W. Bush

Faculty Scholarship

Transformative innovations in medicine and their ethical complexities create frequent confusion and misinterpretation that color the imagination. Placed in historical context, theatre provides a framework to reflect upon how the ethical, legal, and social implications of emerging technologies evolve over time and how attempts to control fate through medical science have shaped -- and been shaped by -- personal and professional relationships. The drama of these human interactions is powerful and has the potential to generate fear, create hope, transform identity, and inspire empathy -- a vivid source to observe the complex implications of translating research into clinical practice through …

Exchange As A Cornerstone Of Families, Martha M. Ertman

Faculty Scholarship

This essay up-ends critical theorist Ivan Illich’s critique of economic thinking as replacing households defined by vernacular gender with married pairs in “inhumane” sex-neutral economic partnerships. It challenges Illich’s view of exchange as a destroyer that has meddled in families for only a few hundred years, citing sociobiological literature to counter his case against exchange with one valorizing two exchanges that I call “primal deals” that played crucial roles in the evolution of humans, families, and day-to-day life. These primal deals—especially the primal pair-bonding deal between men and women—continue to play a central role in families and family law today. …

Against Flexibility, David A. Super

Faculty Scholarship

Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions. Both public and private law should be understood as a productive activity con¬verting information, norms, and decisional and enforcement capacity into out¬puts of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overes¬ti¬mate the value of information that …

A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray

Faculty Scholarship

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …

Troubled Waters: Mid-Twentieth Century American Society On "Trial" In The Films Of John Waters, Taunya Lovell Banks

Faculty Scholarship

In this Article Professor Banks argues that what makes many of filmmaker John Waters early films so subversive is his use of the “white-trash” body—people marginalized by and excluded from conventional white America—as countercultural heroes. He uses the white trash body as a surrogate for talk about race and sexuality in the early 1960s. I argue that in many ways Waters’ critiques of mid-twentieth century American society reflect the societal changes that occurred in the last forty years of that century. These societal changes resulted from the civil rights, gay pride, student, anti-war and women’s movements, all of which used …