Digital Commons Network^™

The Impact Of Civilian Investigative Agency Resources On The Timeliness Of Police Misconduct Investigations, Sharon Fairley

Articles

As many cities and counties turn to civilian oversight of law enforcement to enhance accountability, resource allocation is a critical issue with which police reform advocates, oversight entity administrators, and political leaders struggle almost every budget cycle. Resources are tremendously important in this context. Historically, lack of resources has been an important, if not the decisive factor leading to an oversight entity’s demise.

This Article reports on a unique and newly created dataset composed of case management and budgetary information from civilian oversight entities responsible for independent police misconduct investigations. The data were collected and analyzed to provide greater insight …

The New Outlawry, Darrell Miller, Jacob Charles

Articles

From subtle shifts in the procedural mechanics of self-defense doctrine to substantive expansions of justified lethal force, legislatures are delegating larger amounts of “violence work” to the private sphere. These regulatory innovations layer on top of existing rules that broadly authorize private violence—both defensive and offensive—for self- protection and the ostensible maintenance of law and order. Yet such significant authority for private violence, and the values it projects, can have tragic real-world consequences, especially for marginalized communities and people of color.

We argue that these expansions of private violence tap into an ancient form of social control—outlawry: the removal of …

Historical Analogy And The Role Morality Of Reason-Giving, Darrell Miller

Articles

The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen.

The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of …

Are They All Textualists Now?, Austin Peters

Articles

Recent developments at the U.S. Supreme Court have rekindled debates over textualism. Missing from the conversation is a discussion of the courts that decide the vast majority of statutory interpretation cases in the United States—state courts. This Article uses supervised machine learning to conduct the first-ever empirical study of the statutory interpretation methods used by state supreme courts. In total, this study analyzes over 44,000 opinions from all fifty states from 1980 to 2019.

This Article establishes several key descriptive findings. First, since the 1980s, textualism has risen rapidly in state supreme court opinions. Second, this rise is primarily attributable …

Amendments To The Case-Zablocki Act Concerning Reporting And Publication Of International Agreements And Related Regulations (U.S.), Curtis Bradley

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No abstract provided.

Social Rights Scapegoating, Adam Chilton, Cristián Eyzaguirre, Mila Versteeg

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No abstract provided.

The Natural Law Origins Of Private And Public Law, Richard Epstein

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This article attempts to counter the widespread skepticism that surrounds any appeal to natural law principles, starting with Roman law at one end and the appeal to general law under Swift v. Tyson on the other. It steers a systematic middle course between moral absolutism, which treats all relationships as fixed and immutable, and modern realist positions that insist the infinite variety of legal approaches to most legal problems proves that there is no solid core to either natural law or general law. The natural law positions set out the basic relationships for marriage and family, for alluvion and avulsion …

It's The Procedures, Stupid: The Success And Failures Of Chile's Constitutional Convention, Tom Ginsburg, Isabel Álvarez

Articles

Chile’s experience with its Constitutional Convention from 2021 to 2022 sheds light on an important issue for comparative reflection: the role of procedures in constitution-making processes. The Constitutional Convention was bound by procedures that were both externally imposed and internally created. Our assessment is that, while some procedures improved representation and deliberation, the most important decision-making procedures were pernicious to the process. We argue that looking at procedures is fundamental when analysing constitutional processes, as the rules that bind rule-making processes can significantly impact not only their functioning, but also their outcomes.

Sharing Where Bargains Are Impossible, Saul Levmore, Andrew Verstein

Articles

Cooperation sometimes breaks down, and former teammates will disagree about what happens next. For example, when can an employee quit to join a competitor? Courts often resolve disputes by looking at the parties actual or hypothetical bargain. Thus, a court may ask whether there was a non-competition agreement (and whether it was reasonable), or whether the employee is taking a “corporate opportunity” as she departs. These are all-or-nothing determinations by courts; either the bargain, or law, fully allows or fully prohibits the disputed conduct.

This is a suitable approach when fair and efficient bargains are possible. But, this article argues …

The General-Law Right To Bear Arms, William Baude, Robert Leider

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No abstract provided.

The Trouble With Classifications, Aziz Huq

Articles

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests …

Bankruptcy By Another Name, Anthony Casey, Joshua Macey

Articles

In a recent essay, Abbe R. Gluck, Elizabeth Chamblee Burch, and Adam S. Zimmerman object to the increasing use of bankruptcy to resolve mass-tort claims. They and others are concerned that bankruptcy reduces plaintiff voice, impedes the development of state law remedies, and limits discovery that can drive state and federal regulatory interventions. This Response addresses these critiques. Contrary to popular descriptions of the bankruptcy system, bankruptcy courts do not simply aim to maximize economic efficiency and financial recoveries. Bankruptcy includes numerous procedures, including robust disclosure, bellwether trials, future-claims representatives, and voting, to ensure a fair process and promote noneconomic …

Private Security And Public Police, Ben Grunwald, John Rappaport, Michael Berg

Articles

Private security officers outnumber police by a wide margin, and the gap may be growing. As cities have claimed to defund the police, many have quietly expanded their use of private security, reallocating spending from the public to the private sector. It is difficult to know what to make of these trends, largely because we know so little about what private security looks like on the ground. On one prevalent view of the facts, a shift from public to private security would mean little more than a change of uniform, as the two labor markets are deeply intertwined. Indeed, academics, …

Layered Constitutionalism, Payvand Ahdout, Bridget Fahey

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No abstract provided.

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

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No abstract provided.

Technology, Tradition, And “The Terror Of The People”, Darrell Miller, Alexandra Filindra, Noah Kaplan

Articles

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court man- dated a text, history, tradition, and analogy–only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging “historical tradition of fire- arm regulation” to meet constitutional muster. Some despair that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically grounded policy solutions badly misread the opinion. Empirical studies can …

Secrecy By Stipulation, Nora Freeman, David Freeman, Jonah Gelbach, Austin Peters, Aaron Schaffer-Neitz

Articles

GM Ignition Switch. Dalkon Shield. Oxycontin. For decades, protective orders—court orders that require parties to maintain the confidentiality of information unearthed during discovery—have hid deadly defects and pervasive abuse from the public, perpetuating unnecessary harm.

But how worrisome are these protective orders, really? Under Rule 26(c)’s plain language, protective orders are to be granted only upon a showing of “good cause.” Doesn’t that adequately cabin the orders’ entry? Prominent judges and scholars have long insisted it does, and that, under Rule 26(c), the day-to-day grant of protective orders is careful, not cavalier. Critics disagree. They charge that parties frequently agree …

Imputing Unreported Hate Crimes Using Google Search Data, Aziz Huq, Dhammika Dharmapala

Articles

U.S. law requires the Attorney General to collect data on hate crime victimization from states and municipalities, but states and localities are under no obligation to cooperate by gathering or sharing information. Data production hence varies considerably across jurisdictions. This paper addresses the ensuing “missing data” problem by imputing unreported hate crimes using Google search rates for a racial epithet. It uses two alternative benchmarks for which jurisdictions more effectively collect hate crime data: all states that were not part of the erstwhile Confederacy, and those states with statutory provisions relating to hate crime reporting. We regress rates of racially-motivated …

Foreword To Jels Special Issue, Adam Chilton, Dhammika Dharmapala, William Hubbard

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No abstract provided.

Brown V. Board Of Education Why Do We Need Constitutional Rights?, Geoffrey Stone

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No abstract provided.

Moves & Rules: Addressing The Puzzle Of Social Rule-Following, Alma Diamond

Articles

I explore a puzzle at the heart of the so-called ‘practice theory of rules’: how can rules, operating as normative standards, be determined by the very actions they govern? I demonstrate how this puzzle has shaped criticism of the practice theory and limited its ability to account for mistake and disagreement within social practices. I identify the reason for these difficulties: an exclusive focus on individual deliberative attitudes which ignores the dynamic interaction between plural and individual deliberation within social practices. Drawing on recent work in social ontology, I construct a framework to capture this dynamism. I distinguish between two …

Free Speech On The Internet: The Crisis Of Epistemic Authority, Brian Leiter

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No abstract provided.

Redistribution With Political Constraints: Legal Rules Compared To Taxes And Transfers, David Weisbach

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No abstract provided.

The Consequences And Constitutionality Of Training Police To Blame Victims, Richard Mcadams, Margareth Etienne

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No abstract provided.

Asking Gpt For The Ordinary Meaning Of Statutory Terms, Richard Mcadams, Christoph Engel

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No abstract provided.

Machine-Learning Human Rights, Han-Wei Ho, Patrick Chung-Chia, Nuno Garoupa, Martin Wells, Yun-Chien Chang, Tom Ginsburg

Articles

Utilizing a comprehensive panel dataset spanning from 1900 to 2020, this study introduces an innovative methodology for the analysis and categorization of legal documents, specifically national constitutions. Contrary to the predominant reliance on unsupervised methods within the field, this research incorporates a supervised machine-learning approach, notably the SEMMS method, alongside traditional unsupervised algorithms. This dual approach facilitates a nuanced analysis of the human rights provisions contained within national constitutions, resulting in the identification of both traditional and novel constitutional groupings. Broadly speaking, the more traditional common law-civil law divide does not seem particularly relevant in this context. Furthermore, our methodology …

Bankruptcy Minimalism, Douglas Baird

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No abstract provided.

Untangling Unreliable Citations, Margie Alsbrook

Articles

Citations are the vernacular that the legal profession uses to communicate the precedents that underline our arguments and analysis. They are the building blocks of legal communications and legal arguments, and lawyers and judges need to be able to rely upon the accuracy of each other’s citations to work in a stabilized democracy. Democratic stability is in jeopardy due to an erosion of norms from a variety of well-documented sources, most of which are well beyond the control of the average lawyer. But lawyers and judges can control the reliability of the authority we use in our own work product, …

Solving A Sixth Amendment Crisis: The Case For Resource Parity In Georgia's Indigent Defense System, Meagan R. Hurley

Articles

The United States criminal legal system employs what is said to be an “adversary” system—one in which opposing parties—the prosecution and the defense—present their evidence and arguments (usually in conflict with one another) to a neutral third party (a judge or jury) for adjudication. The idea behind the adversarial process is that a judge or jury is best positioned to make determinations of guilt or innocence once provided with reliable information from competent, zealous, and prepared advocates on both sides of the podium. At its core, the adversarial system is meant to function as the mechanism by which constitutional principles …

Family Talk Versus Usual Services In Improving Child And Family Psychosocial Functioning In Families With Parental Mental Illness: A Randomised Controlled Trial And Cost Analysis, Mairead Furlong, Colm Mcguinness, Christine Marie Mulligan, Sharon Lisa Mcgarr, Sinead Mcgilloway

Articles

Background: Parental mental illness (PMI) is common and places children at high risk of developing psychological disorders. Family Talk (FT) is a well-known, whole-family, 7-session intervention designed to reduce the risk of transgenerational psychopathology. However, very few larger-scale evaluations of FT (across only a limited number of settings) have been conducted to date while there have been no cost analyses. This study aimed to assess the effectiveness and costs of delivering FT in improving child and family psychosocial functioning in families with PMI within routine mental health settings. Methods: A total of 83 families with PMI, with children aged 5-18 …