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The Abuses Of History In Constitutional Interpretation, Sherif Girgis

Journal Articles

From the Article

Jack Balkin’s Memory and Authority powerfully describes the kaleidoscopic quality of historical arguments in constitutional law. The book also moves easily between description and prescription. This Essay explores whether it moves too easily from one to the other. I consider whether the book’s analysis is so keen to capture our actual practices that it leaves itself too few resources for evaluating them—whether its account of history’s uses, made expansive by a zeal to fit how lawyers actually reason, crowds out any robust account of how they ought not to reason. While I am inclined to think so, …

A Comparative Study Of The U.S. And Foreign Tipping Culture And How Collective Bargaining Can Eliminate Mandatory Tipping In The U.S., Matthew Zelman

Cardozo Journal of Conflict Resolution

Tipping culture in the United States has gotten out of hand, but its roots go very deep. Tipping has been a part of the culture in the United States since the early 1800s, when tips were given to pirates and porters. Today, the share of workers who rely on tips as part of their wages is extraordinary, with sixty percent of service workers stating that they rely on tips for over 30 percent of their income. Many restaurants incorporate mandatory tips on customers’ bills, which has changed tipping from being voluntary.

This Note will propose that “tipped employees” across different …

Breaking The Chain: How An Alternate Dispute Resolution Process Can Be Used In The Criminal Justice System For First-Time Non-Violent Criminal Offenders, Leora Perlstein

Cardozo Journal of Conflict Resolution

The criminal justice system is deeply rooted in our history. There are traditional views on how it should be run and conducted. “Founded on the concept that crimes against an individual are crimes against the state, our justice system prosecutes individuals as though they victimized all of society.” Traditionally, when individuals commit a crime, they go through the process of receiving a ticket—or if they commit a particular violent crime they will be immediately arrested—and then they go through the process of appearing in court for an arraignment in which they are “read the charges against [them]” and are either …

Beyond The Bench: Historical Injustices And Future Pathways For Florida’S Family Court, David J. Blum

Honors Undergraduate Theses

This thesis examines systemic inequities in Florida’s family law system, focusing on how legal doctrines, discretionary practices, and enforcement patterns disadvantage unwed and noncustodial fathers. Drawing on statutory analysis, case law, empirical studies, and psychological research, it evaluates several reforms designed to promote fairness while protecting child welfare. These include mandatory paternity testing at birth, a rebuttable presumption of equal custody, stronger enforcement of visitation orders, equitable tax restructuring, and improved training for legal professionals. Current Voluntary Acknowledgment of Paternity (VAP) procedures often create binding obligations without confirming biological parentage, resulting in long-term emotional, legal, and financial consequences. Research shows …

Abolish What?, Benjamin Levin

Scholarship@WashULaw

From leading academic journals to popular press outlets, abolitionist activism and scholarship have earned airtime in national debates about criminal justice reform. But what is "abolition?" When scholars, lawyers, and activists talk about abolition, they seem to mean very different, even conflicting, things. In this Essay, I focus on a core question that might divide different abolitionists-and different critics of abolition: what is to be abolished? Abolitionists argue that it's critically important to abolish something, while critics of abolition insist that something is necessary to a well-functioning society. Yet, it's not always clear what that something is-both for abolitionists and …

Measuring Income And Income Inequality, Conor Clarke, Wojciech Kopczuk

Scholarship@WashULaw

Income inequality is important, but attempts to measure it arrive at strikingly different conclusions. Why? We use recent disputes over measuring United States income inequality to return to first principles about both the income concept and inequality measurement. We emphasize two broad points. First, no measure of the income distribution is truly comprehensive, or could attempt to be comprehensive without making controversial choices. We document the practical and conceptual problems that the standard ideal—comprehensive Haig-Simons income—raises. Second, much of the controversy in this area turns on the many tradeoffs between starting with individual tax data versus more expansive income concepts. …

Incitement, Enthusiasm, And The Dangers Of Negligent Protest, John D. Inazu

Scholarship@WashULaw

This Article explores the murky line between protected speech and assembly on the one hand, and harmful incitement on the other. On the occasion of the 100th anniversary of Oliver Wendell Holmes’s dissent in Gitlow v. New York, it explores Holmes’s famous dictum that “every idea is an incitement” as a conceptual starting point. By analyzing the relational and temporal dynamics between speaker and listener, the Article highlights how meaning and effect are often shaped by the listener’s agency and other circumstances beyond the control of the speaker. Two contemporary cases illustrate these dynamics. The first is the Fifth Circuit …

Ai Ethics, Law, And Policy, Pauline Kim, Ryan Durrie

Scholarship@WashULaw

AI technologies promise many benefits, but they can also have significant negative impacts on human health, safety, well-being, and fundamental rights. This chapter explores the different governance tools that have been considered for guiding developments in AI in socially beneficial ways, examining the relevance of ethics, law, and policy. Each of these approaches offer tools to address these concerns; however, each has limitations, and none provides a complete solution in itself. Statements of ethical principles can articulate high-level values and goals to guide behavior but are usually quite vague and difficult to operationalize. They also lack any enforcement mechanism. In …

Grading Machines: Can Ai Exam-Grading Replace Law Professors?, Jens Frankenreiter, Kevin L. Cope, Scott Hirst, Eric A. Posner, Daniel Schwarcz, Dane Thorley

Scholarship@WashULaw

In the past few years, large language models (LLMs) have achieved significant technical advances, such that legal-advocacy organizations are increasingly adopting them as complements to—or substitutes for—lawyers and other human experts. Several studies have examined LLMs' performance in taking law school exams, finding mixed results. Yet there have been no published studies systematically analyzing LLMs' competence at one of law professors' chief responsibilities: grading law school exams. This paper presents results of an analysis of how LLMs perform in evaluating student responses to legal analysis questions of the kind typically administered in law school exams. The underlying data come from …

When Hard Cases Make Bad Law: A Theory Of How Case Facts Affect Judge-Made Law, Sepehr Shahshahani

Scholarship@WashULaw

“Hard cases make bad law” is one of the most famous aphorisms in Anglo-American law. Its insight is that when strict application of a generally sound law would impose a special hardship on someone, a court may be tempted to distort the law to avoid the hardship. Scholars have long debated the meaning and truth of the aphorism, but the debate has suffered from an imprecise conceptualization of what makes a case “hard.” This lack of precision limits our ability to disentangle and work through the important questions the aphorism raises about how the facts of a particular case affect …

Explaining Constitutional Copying As An Idealogy: Argentina's "Yankee-Mania" Under President Domingo Sarmiento (1868-1874), Jonathan M. Miller

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

Foreign constitutional models can transform a country thanks to the power of ideology. The comparative constitutional literature maintains that successful constitutionalism requires credible commitments to essential rules by all major political actors so that those out of power can avoid persecution that will drive them into rebellion, and those in power can feel assured that if they relinquish power, the opposition will respect their core interests. The literature also assumes that the process of reaching credible commitments is a slow one, but that over time civil society, courts and government bureaucracies will strengthen the commitments and act against unconstitutional power …

Ai Lawyering Skills Trainers: Transforming Legal Education With Generative Ai, Alexandria Serra

Journal of Law, Technology, & the Internet

The integration of generative AI (GenAI) tools in legal education is not just an innovation—it's a transformative shift redefying how law students acquire and refine advocacy skills. This article examines AI’s critical role in modernizing legal education, emphasizing its potential to offer personalized, one-on-one coaching that enhances student learning and engagement. As AI reshapes the legal profession, law schools must evolve to prepare students for an AI-driven future.

Serving as a practical guide, this article provides a step-by-step framework for educators and institutions to develop AI tools that simulate real-world courtroom scenarios and provide continuous, personalized feedback. It also highlights …

Booing Bohnak: How The Second Circuit Dropped The Article Iii Ball In Analyzing Standing In Class Actions Arising From Cyberattacks, Douglas H Meal

Journal of Law, Technology, & the Internet

This article examines the Second Circuit's decision in Bohnak v. Marsh & McLennan Cos., which represents a pivotal development in the interpretation of Article III standing in the context of cyberattack class actions. The court's principal ruling, which held that mere unauthorized access to personal information by reason of a cyberattack constitutes a concrete injury sufficient for standing, marks a significant departure from prior jurisprudence and misinterprets the Supreme Court's seminal Article III decision in TransUnion LLC v. Ramirez. So does the court's alternative holding that standing can be predicated on a plaintiff's risk of suffering identity theft …

Synthetic Media As A Risk Factor For Genocide, Fatemah Albader

Journal of Law, Technology, & the Internet

The rise of artificial intelligence and machine learning has introduced synthetic media—AI-generated images and videos—as a transformative tool in international law. While these technologies can enhance documentation, advocacy, and awareness in conflict zones, they also pose serious risks when misused to incite violence or genocide. This Article explores the dual nature of synthetic media, focusing on its capacity to inflame ethnic tensions, spread disinformation, and manipulate public perception in ways that can catalyze mass atrocities. Drawing on historical examples and recent events, it highlights how synthetic media can function as a risk factor for genocide, especially in volatile environments, and …

How South Dakota Can Criminalize Child Sexual Grooming, Jackson Marnette

South Dakota Law Review

In 2023, the South Dakota Legislature proposed and rejected Senate Bill 94, which would have criminalized child sexual grooming. South Dakota, like most states, lacks a law that effectively deters potential child sexual abusers from initiating the child sexual abuse process. Other states’ grooming laws have been challenged on constitutional grounds with differing results. This article considers the benefits of grooming laws, the pros and cons associated with other states’ passed legislation, and any issues with Senate Bill 94’s language. The article concludes with a legislative proposal based on child sexual grooming academic theory.

Lost Innocence, Mateo Valdivieso

Honors Undergraduate Theses

Human trafficking is defined as involving “force, fraud, or coercion to obtain some type of labor or commercial sex act” (U.S. Department of Homeland Security). It disproportionately affects vulnerable populations, particularly children within the U.S. welfare system. This research aims to analyze the characteristics of this system that produce vulnerabilities in welfare children that heighten their risk of being trafficked. The study focuses on socio-economic, psychological, and environmental vulnerabilities, examining how these factors, combined with increased internet accessibility, exacerbate the risks of trafficking. Using a qualitative approach, the research uses secondary data from peer-reviewed journal articles, government reports, and reputable …

The Impact Of Divorce Proceedings On Victims Of Domestic Violence, Quinn G. Di Ienno

Honors Undergraduate Theses

Divorce often signifies the end of conflict in relationships that individuals no longer wish to continue. However, the impact of divorce on victims of intimate partner violence (IPV) is a topic that remains underexplored. This research investigates the extent to which individuals navigating divorce proceedings are victims of IPV and aims to illuminate their experiences within the legal system. The study delves into various forms of abuse, including physical, emotional, and financial, while also addressing the challenges victims face in seeking assistance. Employing a mixed-methods research design, this study comprises a comprehensive literature review and an online survey targeting those …

How Does The Modern Supreme Court Treat The Idea Of Retribution In The Context Of Capital Punishment?, Paige Forsberg

Honors Undergraduate Theses

This thesis explores the modern U.S. Supreme Court's treatment of retribution in the context of capital punishment, analyzing how justices have framed and justified the death penalty as a form of justice. Through the examination of key Supreme Court rulings and legal arguments, this study evaluates the evolving role of retribution in the Court’s decisions on death penalty cases, highlighting how judicial reasoning has shifted over time in response to legal, philosophical, and societal developments.

Retribution, long considered one of the primary justifications for capital punishment, is examined through a nuanced lens in this study. While historically viewed as a …

Exploring The Impact Of Attorneys With Exposed Tattoos On Jurors, Diego F. Mahoney

Honors Undergraduate Theses

Within the legal field, there appears to be a pervasive stigmatization of exposed tattoos. Law firms justify their explicit or implicit bans on exposed body art by arguing that tattoos could negatively prejudice jurors who may be biased against people with tattoos. This thesis intends to put that notion to the test via a digital survey. Subjects who meet the qualifications to serve as a juror in the United States were shown one of two identical videos of an opening statement. However, in one video the attorney has a neck tattoo, whereas in the other the attorney does not. Subjects …

Rethinking Trust In The Refugee Resettlement Process: How Service Providers Can Enable Refugee Agency Through Diasporic Connections, Mahfoudha Sidelemine, Emily D. Campion

Political Science & Geography Faculty Publications

Current guidance for refugee resettlement agency workers encourages the simultaneous pursuit of trust-building and administrative tasks (e.g., housing, transportation and employment). This dual goal is resource-intensive, and focusing on the former may come at a cost to the latter. The purpose of the current research is to challenge the importance of trust-building by resettlement agencies. Drawing from our qualitative data from in-depth interviews with resettled refugees (N = 20) and agency workers (N = 15), we adopt a grounded theory approach and find that the burden of responsibility for both caregiving and administrative responsibilities can overtax agency workers …

Overcoming Judicial Innumeracy: A Proposal To Bring The Venerable Process Of Peer Review To The Enduring Problem Of Courts’ Scientific Illiteracy, David L. Faigman

Faculty Scholarship

Lawyers are not known for their proficiency in math and science. Most of us who went to law school reached a point in our math and science studies when we realized that neither medicine nor engineering were likely to be successful career paths. It is these lawyers who become judges. Yet, the United States Supreme Court has increasingly put the burden for deciding complex scientific and technical questions in the hands of judges. This Article explores this trend of putting greater responsibility for deciding scientific and technical issues on judges, particularly in the areas of evidence law, administrative law, and …

Criminal Procedure Without Consent, Kate Weisburd

Faculty Scholarship

Scholars and advocates have long argued that a person’s consent to a warrantless police search is often so inherently coerced, uninformed, and shaped by race, class, gender, citizenship status, and disability that to call it a “choice” is fiction. This critique is not limited to police searches based on consent. Waiving rights and consenting to otherwise unconstitutional state action permeates criminal procedure. The definition of a seizure, the third-party doctrine, custodial confessions, plea bargains, and agreements to alternatives to incarceration (such as GPS ankle monitoring) all hinge on the idea of voluntary choices—choices that are often just as coerced and …

On Emerging Technologies: The Old Regime And The Proactivity, Ran Xi

Cardozo International & Comparative Law Review

Nowadays, emerging technologies are revolutionizing nearly every facet of human life, shaping legal, cultural, political, and technological landscapes. Despite various breakthroughs, emerging technologies have also brought to society legal and regulatory challenges, such as the pacing problem, regulatory silos, and the black box issue. However, existing state-centric regulation on emerging technologies results in fragmented, inconsistent, and ineffective statutes and policies. The traditional regulatory regime, due to its reactive mindset, incremental approaches, and tools of modest efficacy, fails to mitigate associated risks and harms, sometimes even impeding technological innovation. To tackle this dilemma, this Article proposes a proactive law approach with …

Empowering Digital Consent: A Risk-Focused Due Diligence Tool, Bar Fargon Mizrahi

Cardozo Arts & Entertainment Law Journal

We live in an era of almost infinite digital interactions, many of which involve risks to our rights stemming from various problematic practices, such as data-protection infringements, user profiling, and consumer protection violations. Currently, the protection of digital consumers against these risks rests primarily on a "notice-and-consent" regulatory model-users are legally presumed to have consented to the terms of service (ToS) and privacy policy agreements (PPAs) of the digital services they use. In reality, despite the gravity of the risks involved, users routinely fail to study these binding agreements. Thus, it is widely accepted that this model is ineffective at …

Agency Problems In Contract Design, Naveen Thomas

Faculty Scholarship

No abstract provided.

Data Privacy In K-12 Education: Protecting Students In The 21st Century, Kate Hughes

SMU Science and Technology Law Review

Connectivity has come to define a new generation, with kids today comprising a large sector of the online community. With most of their days spent at school, it is no surprise that the 21st-century classroom has become a playground in the digital sense, with districts growing increasingly reliant on “EdTech” platforms that promise high-impact solutions to an industry entrusted with laying the foundations of the next generation. As the “big data” movement continues to progress, the education sector will continue to reinvent itself alongside the chance to discover new efficiencies and create new opportunities for timely feedback, individualized instruction, and …

J Mich Dent Assoc January 2025

The Journal of the Michigan Dental Association

Each month, the Journal of the Michigan Dental Association provides news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. It is the primary publication reaching Michigan dentists. The January issue sets the tone for February, the observance of Children’s Dental Health Month.

Michigan Academy of Pediatric Dentistry President Jessica Bentoski welcomes readers to this special issue, which features a cover feature on “Approaches to Care for Children with Special Needs in Dental Settings: Desensitization and Teledentistry” and a supporting article on “General Dentists’ Education, Knowledge, Attitudes, and Behavior Concerning the Effects …

History's Identity Crisis, Allison Orr Larsen

SMU Law Review

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning—weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of fact-finding—generalized …

Sffa V. Harvard: Racial Triangulation And The Invidious Myth Of Colorblindness, Philip Lee

Faculty Publications

(Excerpt)

In Students for Fair Admissions, Inc. (SFFA) v. President and Fellows of Harvard College, a case in which the Supreme Court ended the longstanding practice of race-conscious admissions in higher education, Asian Americans were used as a wedge between White people and non-Asian minorities to eradicate a mechanism that fostered greater racial diversity in student bodies in many highly selective institutions across the country. A majority of Supreme Court justices justified their decision in the name of “colorblindness.” However, the way the justices positioned Asian Americans against other people of color was not colorblind. It was consistent with …

Harmonizing Copyright: Navigating Pop Music's Creative Landscape In The Era Of Arnstein And Krofft, Evan Joseph

Cardozo Arts & Entertainment Law Journal

This Note explores how the Arnstein and Krofft tests negatively impact pop music in an age where pop music is constantly evolving. It discusses the specific ways in which the tests can discourage creativity, innovation, and fair competition in the pop music industry. It also argues for reform of copyright law to address the shortcomings of the Arnstein and Krofft tests. Part I defines and provides a brief overview of the history of pop music and copyright infringement, while also discussing the importance and economic value of pop music in society. This Part also explains the gravity behind these claims, …