Digital Commons Network^™

Rulemaking And Inscrutable Automated Decision Tools, Katherine J. Strandburg

Faculty Articles

Complex machine learning models derived from personal data are increasingly used in making decisions important to peoples’ lives. These automated decision tools are controversial, in part because their operation is difficult for humans to grasp or explain. While scholars and policymakers have begun grappling with these explainability concerns, the debate has focused on explanations to decision subjects. This Essay argues that explainability has equally important normative and practical ramifications for decision-system design. Automated decision tools are particularly attractive when decisionmaking responsibility is delegated and distributed across multiple actors to handle large numbers of cases. Such decision systems depend on explanatory …

Strategic Games And Algorithmic Secrecy, Ignacio N. Cofone, Katherine J. Strandburg

Faculty Articles

We challenge a claim commonly made by industry and government representatives and echoed by legal scholarship: that algorithmic decision-making processes are better kept opaque or secret because otherwise decision-subjects will “game the system”, leading to inaccurate or unfair results. We show that the range of situations in which people are able to game decision-making algorithms is narrow, even when there is substantial disclosure. We then analyze how to identify when gaming is possible in light of (i) how tightly the decision-making proxies are tied to the factors that would ideally determine the outcome, (ii) how easily those proxies can be …

When Stop And Frisk Comes Home: Policing Public And Patrolled Housing, Alexis Karteron

Faculty Articles

In response to programmatic stop-and-frisk, police killings, and other recent controversies in American policing, many have called for “smart policing”—the evidence-based deployment of police resources. An often-heralded example of smart policing is hot spots policing, which involves directing police attention to locations where crime and disorder fester. It is difficult to argue with the logic of hot spots policing, and this Article does not do so. Instead, it critically examines how the Fourth Amendment operates when hot spots policing and similar targeted strategies are used in a common setting: public housing developments and their private counterparts. Largely because of mass …

Political Lawyering For The 21st Century, Deborah N. Archer

Faculty Articles

Legal education purports to prepare the next generation of lawyers capable of tackling the urgent and complex social justice challenges of our time. But law schools are failing in that public promise. Clinical education offers the best opportunity to overcome those failings by teaching the skills lawyers need to tackle systemic and interlocking legal and social problems. But too often even clinical education falls short: it adheres to conventional pedagogical methodologies that are overly narrow and, in the end, limit students’ abilities to manage today’s complex racial and social justice issues. This Article contends that clinical education needs to embrace …

Deputizing Family: Loved Ones As A Regulatory Tool In The “Drug War” And Beyond, Matthew B. Lawrence

Faculty Articles

Many laws use family members as a regulatory tool to influence the decisions or behavior of their loved ones, i.e., they deputize family. Involuntary treatment laws for substance use disorder are a clear example; such laws empower family members to use information shared by their loved ones to petition to force their loved ones into treatment without consent. Whether such deputization is helpful or harmful for a patient’s health is a crucial and dubious question discussed in existing literature, but use of family members as a regulatory tool implicates important considerations beyond direct medical impacts that have not been as …

Sharkfests And Databases: Crowdsourcing Plea Bargains, Kay L. Levine, Ronald F. Wright, Nancy J. King, Marc L. Miller

Faculty Articles

In this Essay, we dive deeper into this final dimension to discuss the influence of professional networks on plea negotiations. In particular, we examine the effects of crowdsourcing tactics in the negotiation setting. We describe, for example, what happens when lawyers bargain in public, benefitting from an audience that provides information about past practices and deals. And then we speculate about what might happen if that audience were instead a widely shared database that documents plea practices in the jurisdiction. We offer a few preliminary thoughts about the potential influence of such techniques, as we are not in a position …

Shareholders United?, Andrew K. Jennings

Faculty Articles

Securities regulation has a way of crossing into other lanes. What public companies do is substantive regulation. How they govern themselves while doing it-or more importantly, how they disclose it-is securities regulation. So it is no surprise that the perennial concern over regulating money in politics should also become a question of federal securities regulation. The Shareholders United Act (the "Act")-passed by the House of Representatives as part of House Bill 1, an early, major piece of legislation in the 116th Congress-does just that. The Act would require that before engaging in political spending, public companies poll shareholders on how …

Punishing Homelessness, Sara K. Rankin

Faculty Articles

Homelessness is punishing to those who experience it, not just from the inherent and protracted trauma of living exposed on the street, but also due to widespread and pervasive laws that punish people for being homeless. People experiencing homelessness, particularly chronic homelessness, often lack reasonable alternatives to living in public. Yet cities throughout the country are increasingly enacting and enforcing laws that punish the conduct of necessary, life-sustaining activities in public, even when many people have no other option. These laws are frequently challenged in court and often struck down as unconstitutional. But legally sound, cost-effective, and non-punitive alternatives to …

The Mythology Of Sanctuary Cities, Kit Johnson

Faculty Articles

Sanctuary jurisdictions — be they cities, counties, or states — employ various means of disentangling local law enforcement from federal civil immigration enforcement. Much of the criticism directed at these “sanctuary cities” revolves around a set of myths — such as that these jurisdictions are lawless or dangerous. This Essay identifies nine myths about sanctuary cities and subjects each to a fact-based shakedown.

Code Of Silence, Melissa Mortazavi

Faculty Articles

To read the literature on professional responsibility is to inhabit a world focused on what is said explicitly about what it means to be a lawyer: the aspirations of the canons, the commands of the Model Rules of Professional Responsibility, the clarifications of court and ethics opinions, and the guidance of the Restatement. However, it often neglects what is not said: spaces where silence reigns. This article takes a different approach; it listens to the taciturn. This article draws insight from when the bar chooses to be silent in the face of widely known violations of the law of lawyering. …

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making? One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves. Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to …

Constitutional Confessions: In Favor Of A "Loewy Plus' Approach, Tracy Hresko Pearl

Faculty Articles

Professor Arnold Loewy famously argues that, given the failings of Fifth Amendment jurisprudence, the Sixth Amendment right to counsel should attach at interrogation rather than at the onset of adversarial proceedings. His proposal is wise and should be adopted. However, given the failure of the Court's ruling in Miranda v. Arizona to reduce psychological coercion during custodial interrogations, several additional reforms are needed. Namely, it should be significantly more difficult for suspects to waive their right to counsel during interrogation, all custodial interrogations should be recorded, and particularly coercive interrogation techniques – like lying about evidence – should be banned.

Arrests As Guilt, Anna Roberts

Faculty Articles

An arrest puts a halt to one’s free life and may act as prelude to a new process. That new process—prosecution—may culminate in a finding of guilt. But arrest and guilt—concepts that are factually and legally distinct—frequently seem to be fused together. This fusion appears in many of the consequences of arrest, including the use of arrest in assessing “risk,” in calculating “recidivism,” and in identifying “offenders.” An examination of this fusion elucidates obstacles to key aspects of criminal justice reform. Efforts at reform, whether focused on prosecution or defense, police or bail, require a robust understanding of the differences …

Rebellious Reflection: Supporting Community Lawyering Practice, Monika Batra Kashyap

Faculty Articles

This Article contends that lawyers who are trained in the skill of reflection are better equipped to engage in a social change-oriented approach to law practice called community lawyering. By conceptualizing reflection as a contemplative pedagogy, this Article will reveal a profound connection between community lawyering, reflection, and the contemplative law movement. The Article offers specific “rebellious” reflection-based pedagogies that can help practitioners and future lawyers: strengthen their capacity for deep self-awareness; interrogate the traditional lawyer-client relationship; sharpen their analysis of race, class, and power; and cultivate an understanding of how social change occurs. By presenting testimonials from new lawyers …

Assessing Aspects Of Acculturation In A Muslim American Sample: Development And Testing Of The Acculturation Scale For Muslim Americans, Anisah Bagasra, Mitchell Mackinem

Faculty Articles

Acculturation of Muslims into the American culture continues to be a topic of deep interest. The purpose of this study was to examine acculturation in a sample of both American-born and Immigrant Muslim Americans. Two hundred and fifty five Muslim Americans completed a scale designed to assess two aspects of acculturation within the population: adherence to Islamic identity and conformity to American social norms. The survey was distributed in both a paper-based and online anonymous format consisting of demographic questions and the acculturation scale designed for this study. Results revealed that both immigrants and U.S. born Muslim Americans demonstrate a …

Outcomes Of Motivational Interviewing Training With Probation And Parole Officers: Findings And Lessons Learned, Melanie M. Iarussi, Dixie F. Powers

Faculty Articles

Motivational Interviewing (MI) is an evidence-based approach that provides probation and parole officers with specific skills to enhance their clients' motivations to change problematic behaviors. This study investigated the outcomes of MI training with probation and parole officers whose state agency required them to complete MI training. Results show that officers' MI skills, self-efficacy, and knowledge increased following training, with some exceptions. Recommendations from implementation science literature are provided for improving MI trainings.

Peer-Delivered Harm Reduction And Recovery Support Services: Initial Evaluation From A Hybrid Recovery Community Drop-In Center And Syringe Exchange Program, Robert D. Ashford, Brenda Curtis, Austin M. Brown

Faculty Articles

Background: Recovery from substance use disorder (SUD) is often considered at odds with harm reduction strategies. More recently, harm reduction has been categorized as both a pathway to recovery and a series of services to reduce the harmful consequences of substance use. Peer recovery support services (PRSS) are effective in improving SUD outcomes, as well as improving the engagement and effectiveness of harm reduction programs. Methods: This study provides an initial evaluation of a hybrid recovery community organization providing PRSS as well as peer-based harm reduction services via a syringe exchange program. Administrative data collected during normal operations of the …

A Legal Fempire?: Women In Complex Civil Litigation, Brooke D. Coleman

Faculty Articles

Justice Ruth Bader Ginsburg made headlines when she said that she would be satisfied with the number of women on the Supreme Court “when there are nine.” But why should that answer have been so remarkable? After all, there were nine men on the Court for nearly all of its history. Yet, Justice Ginsburg’s statement was met with amusement or from some quarters — disdain. What answer would have been considered more appropriate coming from a groundbreaking feminist litigator? Would four have been an acceptable answer? Would five have been presumptuous? This episode reflects our cramped view of how much …

#Metoo Justice (Review Of "#Metoo, Time’S Up, And Theories Of Justice" By Lesley Wexler, Jennifer Robbennolt & Colleen Murphy), Brooke D. Coleman

Faculty Articles

No abstract provided.

The (Mis)Application Of Rule 404(B) Heuristics, Dora W. Klein

Faculty Articles

In all of the federal circuit courts of appeals, application of Rule 404(b) of the Federal Rules of Evidence has been distorted by judicially-created "tests" that, while intended to assist trial courts in properly admitting or excluding evidence, do not actually test for the kind of evidence prohibited by this rule. Rule 404(b) prohibits evidence of "crimes, wrongs, or other acts" if the purpose for admitting the evidence is to prove action in accordance with a character trait. This evidence is commonly referred to as "propensity" evidence, or "once a drug dealer, always a drug dealer" evidence.

This Article examines …

Tribute To Professor Paul Giannelli, Erin E. Murphy

Faculty Articles

Tribute to Professor Giannelli and his work in expert and forensic evidence.

A Better Balance For Federal Rules Governing Public Access To Appeal Records In Immigration Cases, Nancy Morawetz

Faculty Articles

In the first year of the Trump Administration, the courts played a critical role in reviewing and shaping federal immigration policy. When nonprofits and states filed prominent cases challenging the “travel ban,” the public could follow the court process in real time, as new filings were published on the web. But this access to filings is highly unusual for immigration cases. Due to Federal Rules promulgated in 2009, there are special restrictions on access to immigration filings that mean that filings in cases that are less prominent are impossible to access electronically. Thus, as immigration enforcement continues to ratchet up, …

The Right To Counsel In Criminal Cases: Still A National Crisis, Mary Sue Backus, Paul Marcus

Faculty Articles

In 1963, Gideon v. Wainwright dramatically changed the landscape of criminal justice with its mandate that poor criminal defendants be entitled to legal representation funded by the government. As scholars and practitioners have noted repeatedly over more than fifty years, states have generally failed to provide the equal access Gideon promised. This Article revisits the questions raised by the authors over a decade ago when they asserted that a genuine national crisis exists regarding the right to counsel in criminal cases for poor people. Sadly, despite a few isolated instances where litigation has sparked some progress, the issues remain the …

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

Faculty Articles

We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. As for ambition, the Court …

Inclusive Immigrant Justice: Racial Animus And The Origins Of Crime-Based Deportation, Alina Das

Faculty Articles

The merger of immigration and criminal law has transformed both systems, amplifying the flaws in each. In critiquing this merger, most scholarly accounts begin with legislative changes in the 1980s and 1990s that vastly expanded criminal grounds of deportation and eliminated many forms of discretionary relief. As a result of these changes, immigrant communities have experienced skyrocketing rates of detention and deportation, with a disparate impact on people of color. Despite increasing awareness of the harshness of the modern system, however, many people still view criminal records as a relatively neutral mechanism for identifying immigrants as priorities for detention and …

Reflections On The Sandra Lockett Case, Peggy C. Davis

Faculty Articles

Criminal justice systems are too often recklessly driven by crude, fearful and vengeful responses to tragic events. The story of Sandra Lockett reminds us that the law should moderate those responses and give each criminal defendant the equal respect that her life commands.

For Sandra Lockett, Anthony G. Amsterdam

Faculty Articles

No abstract provided.

Police Executive Opinions Of Legal Regulation, Roger Michalski, Stephen Rushin

Faculty Articles

By conducting a national survey, this Article empirically assesses how American police leaders perceive external legal regulation. At various times, policymakers have decried external police regulations as too expensive, too complicated, or too difficult to apply to different factual scenarios. Critics have also alleged that police regulations change too frequently, inadequately consider input from the law enforcement community, and unduly risk the safety of officers or the broader community. These complaints underscore an uncomfortable, but unavoidable reality: efforts to regulate police behavior often require policymakers to make compromises. A rule that promotes one goal may necessarily compromise another important goal. …

The (Not So) New Law Of The Child, Martin Guggenheim

Faculty Articles

This is a response to the recently published article by Anne Dailey and Laura Rosenbury in the Yale Law Journal entitled The New Law of the Child. My principal response is three-fold. As much as I appreciate the effort to search for a new law of the child, in several ways, I believe these authors have failed to provide a satisfactory one. First, in their criticism of what they call “the authorities framework,” by which they mean American law that relegates most of the prominent decisions regarding children’s upbringing to parents, Dailey and Rosenbury end up proposing a substitute or …

Making Connections With The Wire: Telling The Stories Behind The Statistics, Rachel E. Barkow

Faculty Articles

The reality of human nature is that facts and statistics do not move people to action — stories and personal connections do. Narratives, more than raw numbers, help people see the relationship between social and economic inequality and crime. For most Americans, the stories that have informed their view of criminal justice have created the misleading impression that many, if not most, people who commit crimes are violent by nature and unredeemable. With that perception, the statistics cannot break through because the public incorrectly believes the people in prison must all deserve to be there and retribution and public safety …