Digital Commons Network^™

Contingent Fee Conflicts: Attorneys Opt For Quick-Kill Settlements When Their Clients Would Be Better Off Going To Trial, Chryssa Deliganis, Steve Calandrillo, Neela Brocato

Faculty Articles

Despite the checkered history of contingency fees in the practice of law,

attorneys often claim that such fee arrangements perfectly align the interests of

lawyer and client. After all, contingency fee lawyers proclaim in TV ad after TV

ad, “we don’t get paid unless you win.” That superficial logic does not withstand

economic scrutiny. Utilizing a behavioral economics lens, this Article

demonstrates that contingency fee arrangements give attorneys excessive

incentives to settle cases that their clients would be better off taking all the way

through trial. In addition to highlighting this undertheorized problem in law, we

offer normative recommendations to …

Placebo Trials: A New Tool To Discourage Wrongful Convictions Caused By Jury Error, Hayley Stillwell

Faculty Articles

Despite the foundational principle in the American criminal justice system that it is better to acquit the guilty than to convict the innocent, wrongful convictions remain a persistent issue. Wrongful convictions are sometimes caused by flawed evidence, such as eyewitness misidentifications and unreliable forensic techniques. Researchers and scholars have studied this problem of flawed evidence extensively, leading to many successful reform efforts to address this portion of the wrongful conviction problem. But there is another portion of the wrongful conviction problem that has yet to be the target of reform efforts—wrongful convictions caused by juror error. Implicit biases, forbidden assumptions, …

A Wolf In Sheep’S Attire: How Consent Enfeebles Our Fourth Amendment, Stephen E. Henderson, Guha Krishnamurthi

Faculty Articles

The Fourth Amendment is a mirage. On paper—in the rules studied by law students, analyzed by scholars, and proclaimed by jurists—its limitations are many and, oftentimes, significant. Yet the experience of large numbers of Americans is entirely to the contrary, thanks to the rights-annihilating, under-theorized exception of “consent.” Under its guise, law enforcement officers routinely conduct what would otherwise be constitutionally-restrained searches and seizures, and they do so without meaningful explanation or assent. Fortunately, change—whether legislative or (ideally) constitutional—could be straightforward. Thanks to other sufficient triggers, consent could be replaced by a narrow, rights-protective doctrine under which law enforcement could …

From Margins To Center: Elevating The Voices Of Disadvantaged Families In Child Welfare, Jerron R. Wheeler

Faculty Articles

This essay sheds light on the systemic challenges faced by indigent, minority families within the child welfare system, using personal experiences from my time as a student at the University of Florida Levin College of Law as a lens. This essay aims to highlight the intersection of poverty, race, and the child welfare system, showing how these factors can hinder parents' ability to reunite with their children despite their best efforts. The essay seeks to underscore the urgent need for a more nuanced, multidisciplinary approach to child welfare advocacy that includes legal professionals, social workers, and health professionals working collaboratively …

Public Accommodations Laws, Free Speech Challenges, And Limiting Principles In The Wake Of 303 Creative, Michael L. Smith

Faculty Articles

In 303 Creative LLC v. Elenis, the United States Supreme Court ruled that Colorado's Anti-Discrimination Act's prohibition of discrimination on the basis of sexual orientation violated the First Amendment rights of Lorie Smith, a website designer who refused to make wedding websites for same-sex couples. This Article argues that the Court's ruling rested on a vision of state control over speech that was divorced from the law before it. Using this framing of the law to conjure up inapplicable hypothetical scenarios of state-mandated expression, the Court found in Smith's favor. And yet, in responding to the dissent's concerns that the …

State Constitutional Prohibitions Of Slavery And Involuntary Servitude, Michael L. Smith

Faculty Articles

In recent years, the Thirteenth Amendment has drawn sustained criticism for its “Punishment Clause,” which exempts those duly convicted of criminal offenses from the Amendment’s prohibition of slavery and involuntary servitude. Citing the Punishment Clause, courts have struck down challenges by those sentenced to forced labor, arguing that such involuntary servitude is explicitly permitted for those convicted of crimes. Recent criticism draws on concerns over mass incarceration and expansive forced labor practices—urging that the Thirteenth Amendment be revised to remove the Punishment Clause.

Prompted by increased attention to and criticism of the Punishment Clause, some states have taken matters into …

Model For Understanding Cedaw's Impact On Implementing Gender Equality Reforms: Lessons From Canada And India, Amanda L. Stephens

Faculty Articles

This Article provides a model for examining the impact of the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") on implementing gender equality reforms using Canada and India, two CEDAW State Parties, as case studies. It also explores the influence of heteropatriarchy, deeply rooted cultural norms perpetuating gender inequality, on hindering CEDAW's ratification in the United States, as well as CEDAW's effectiveness in implementing reforms in Canada and India. The analysis showcases how non-governmental organizations ("NGOs") in these countries have nevertheless achieved limited successes through their mobilization of CEDAW to address specific gender injustices, such as …

When Machines Can Be Judge, Jury, And Executioner: Justice In The Age Of Artificial Intelligence (Book Review), Stacy Fowler

Faculty Articles

In When Machines Can Be Judge, Jury, and Executioner, former federal judge Katherine Forrest raises concerns over the pervasive use of artificial intelligence (AI) in the American justice system to produce risks and need assessments (RNA) regarding the probability of recidivism for citizens charged with a crime. Forrest’s argument centers on AI’s primary focus on utilitarian outcomes when assessing liberty for individual citizens. This approach leads Forrest to the conclusion that in its current form, AI is “ill-suited to the criminal justice context.” Forrest contends that AI should instead be programmed to focus on John Rawl’ 'concept of justice as …

Racial Justice And Marijuana, Steven Bender

Faculty Articles

Current legalization approaches for recreational marijuana fall short of performing and delivering racial justice as measured by materiality and outcomes rather than promises of formal legal equality. As a small first step for unwinding the War on Drugs, this Article considers how legalizing recreational marijuana can help move law and society toward true racial justice, measured by material and actual outcomes for systemically subordinated groups. In the same way that criminalization of marijuana was one of the tools for racial control, legalization of marijuana can be a revenue-based tool toward an anti-subordination future of material equality. While recognizing the shortcomings …

The Master's Tools And A Mission: Using Community Control And Oversight Laws To Resist And Abolish Police Surveillance Technologies, Vincent M. Southerland

Faculty Articles

The proliferation and use of technology by law enforcement is rooted in the hope that technological tools can improve policing. Improvement, however, is relative. Quantitative data and qualitative experience have proven the criminal legal system a site of racial injustice and rank brutality. Police are one of the principal instruments of those harms. For the communities who bear the brunt of policing and the other facets of the criminal system, law enforcement technologies only reify and exacerbate injustice. Surveillance technologies are of particular concern because they are disproportionately wielded against economically disadvantaged communities of color, infringe on privacy, and tend …

Policy's Place In Pedestrian Infrastructure (Book Review), Michael L. Smith

Faculty Articles

Angie Schmitt's Right of Way: Race, Class, and the Silent Epidemic of Pedestrian Deaths in America delves into the complex, multi-layered phenomenon of how traffic infrastructure and policies systematically disadvantage pedestrians and contribute to thousands of deaths and injuries each year. Despite the breadth of the problem and its often-technical aspects, Schmitt presents the problem in an engaging and approachable manner through a step-by-step analysis combining background, statistics, and anecdotes.

While Right of Way tends to focus on infrastructure design, it offers much for legal scholars, lawyers, and policymakers. Schmitt addresses several policy issues at length in the book. But …

Transforming Military Justice: The 2022 And 2023 National Defense Authorization Acts, David A. Schlueter, Lisa Schenck

Faculty Articles

For the past decade there have been numerous and significant changes to the Uniform Code of Military Justice (UCMJ), the statutory basis for the military justice system. Although the Military Justice Act of 2016 made major changes to the UCMJ, the calls for change continued. One of the most-often heard calls for reform over the last decade has suggested removing commanders from the military justice system. Some have argued that a command-centric military justice system was outdated, and it was time to make the system look more like the federal criminal procedure system. Other critics have advocated for a military …

This Is Not Your Grandparents' Military Justice System: The 2022 And 2023 National Defense Authorization Acts, David A. Schlueter, Lisa M. Schenck

Faculty Articles

Despite the major reforms to the American military justice system in the 2016 Military Justice Act, the drumbeat for reform has continued. One of the most-often heard calls for reform over the last decade has suggested removing commanders from the military justice system. Some have argued that a command-centric military justice system was outdated, and it was time to make the system look more like the Federal criminal procedure system. Other critics have advocated for a military justice system that looks more like those of our allied nations. This article briefly addresses the 2022 and 2023 NDAA changes to the …

Asymmetries, Norm Matching, And The Pursuit Of Equity Between The Police And The Public, Eang Ngov

Faculty Articles

Concerns about police abuse and overcriminalization are on the forefront of public conscientiousness. In spite of the Black Lives Matter movement and calls for police reform, law enforcement officials enjoy a variety of criminal procedure loopholes and double standards, which the United States Supreme Court has ratified through its creation of the open fields, mistake of law, and third party doctrines, as well as its acceptance of deceptive police practices. This Article analyzes the asymmetries between permissible civilian conduct and permissible police conduct to make a broader, systemic critique of the double standards and loopholes that pervade constitutional criminal procedure. …

Distilling The Language Of The Law, Stacey A. Tovino

Faculty Articles

No abstract provided.

Whitewashing The Fourth Amendment, Daniel S. Harawa

Faculty Articles

A conventional critical race critique of the Supreme Court and its Fourth Amendment jurisprudence is that it erases race. Scholars argue that by erasing race, the Court has crafted doctrine that is oblivious to people of color’s lived experiences with policing in America. This Article complicates this critique by asking whether it is solely the Court that is doing the erasing. It explores how race was — or more accurately, was not — litigated in seminal Fourth Amendment cases scholars have targeted for attack: Florida v. Bostick, Illinois v. Wardlow, and United States v. Drayton. As the Article shows, race …

Battle For Our Souls: A Psychological Justification For Corporate And Individual Liability For Organizational Misconduct, Jennifer H. Arlen, Lewis A. Kornhauser

Faculty Articles

In this Article, we undertake the first analysis of optimal individual and corporate liability for organizational misconduct that incorporates crucial insights from psychology about people’s motivations, their decision-making processes, and how laws and organizations affect people’s behavior. Specifically, we develop an evidence-based deterrence theory predicated on empirical evidence from psychology that people have other- regarding preferences, the law can deter by expressing social condemnation as well as through sanctions, people rely on intuitive decision-making processes to make most decisions, and organizations influence deterrence by shaping employees’ decision-making environment. Our theory improves on both classical deterrence theory and expressive law theory. …

Private Ownership Of Public Facts: Docudramas, Deals, And Life Story Rights, David Fagundes, Jorge L. Contreras

Faculty Articles

From Elizabeth Taylor to Mike Tyson, celebrities have claimed ownership of their personae. But while the right of publicity and other laws give individuals the right to control commercial exploitation of their images, voices, mannerisms and taglines, the law stops short of recognizing a property interest in the events of their lives. On the contrary, the First Amendment protects producers of expressive works when telling non-defamatory stories about real people. The intuition that exists among celebrities and lay persons alike that individuals own their “life stories” has been fueled by the decades-old Hollywood practice of “acquiring” life story rights from …

Between Cooperation And Conflict In Second Look Sentence Review, Kay L. Levine, Ronald F. Wright

Faculty Articles

This Article offers the first scholarly assessment of new resentencing practices initiated by state prosecutors in the United States. Unlike the conviction integrity units that have become institutional fixtures in many prosecutors’ offices over the past two decades, attorneys working on resentencing matters rarely address concerns about the legal integrity or factual accuracy of the conviction itself. Prosecutors and defense attorneys instead consider the continuing integrity of the sentence imposed on the defendant. Perhaps a second look is necessary because the sentence imposed for the crime no longer appears necessary to serve public safety goals, because the prisoner has aged …

The Public Voice Of The Defender, Russell M. Gold, Kay L. Levine

Faculty Articles

For decades police and prosecutors have controlled the public narrative about criminal law. The news landscape features salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets. Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations—all of which inflict severe harm on defendants and their …

Bad Faith Prosecution, Ann Woolhandler, Jonathan R. Nash, Michael G. Collins

Faculty Articles

There is no shortage of claims by parties that their prosecutions are politically motivated, racially motivated, or just plain arbitrary. In our increasingly polarized society, such claims are more common than ever. Donald Trump campaigned on promises to lock up Hillary Clinton for her handling of State Department-related emails, but he subsequently complained that the special counsel's investigation of his campaign's alleged contacts with Russian operatives was a politically motivated witch hunt. Kenneth Starr's pursuit of investigations of Bill Clinton evoked similar arguments of political motivation.

The advent of "progressive" prosecutors will no doubt increase claims of bad faith prosecution, …

Rage Against The Machine: Who Is Responsible For Regulating Generative Artificial Intelligence In Domestic And Cross-Border Litigation?, S. I. Strong

Faculty Articles

In 2023, ChatGPT—an early form of generative artificial intelligence (AI) capable of creating entirely new content—took the world by storm. The first shock came when ChatGPT demonstrated its ability to pass the U.S. bar exam. Soon thereafter, the world learned that ChatGPT was being used by both lawyers and judges in actual litigation.

Some within the legal community find the use of generative AI in civil and criminal litigation entirely unproblematic. Others find generative AI troubling as a matter of due process and procedural fairness due to its propensity not only to misinterpret legitimate legal authorities but to create fictitious …

Searches Without Suspicion: Avoiding A Four Million Person Underclass, Tonja Jacobi, Addie Maguire

Faculty Articles

In Samson v. California, the Supreme Court upheld warrantless, suspicionless searches for parolees. That determination was controversial both because suspicionless searches are, by definition, anathema to the Fourth Amendment, and because they arguably undermine parolees’ rehabilitation. Less attention has been given to the fact that the implications of the case were not limited to parolees. The opinion in Samson included half a sentence of dicta that seemingly swept probationers into its analysis, implicating the rights of millions of additional people in the United States. Not only is analogizing parolees and probationers not logically sound because the two groups differ …

Role-Reversibility, Ai, And Equitable Justice — Or: Why Mercy Cannot Be Automated, Stephen E. Henderson, Kiel Brennan-Marquez

Faculty Articles

A few years ago, we developed the concept of “role-reversibility” in AI governance: the idea that it matters whether a party exercising judgment is reciprocally vulnerable to the effects of judgment. This idea, we argued, supplies a deontic reason to maintain certain spheres of human judgment even if (or when) truly intelligent machines become demonstrably superior in every utilitarian sense. While computer science remains far from that holy grail, generative AI is raging through systems as diverse as healthcare, finance, advertising, law, and academe, making it imperative to further shore up our claim. We do so by situating role-reversibility within …

A Real Chance To Effect Real Change, Robert C. Boruchowitz

Faculty Articles

No abstract provided.

On Warrants & Waiting: Electronic Warrants & The Fourth Amendment, Tracy Hresko Pearl

Faculty Articles

Police use of electronic warrant (“e-warrant”) technology has increased significantly in recent years. E-warrant technology allows law enforcement to submit, and magistrate judges to review and approve, warrant applications on computers, smartphones, and tablets, often without any direct communication. Police officers report that they favor e-warrants over their traditional counterparts because they save officers a significant amount of time in applying for warrants by eliminating the need to appear in-person before a magistrate. Legal scholars have almost uniformly praised e-warrant technology, as well, arguing that use of these systems will increase the number of warrants issued throughout the United States …

The Effectiveness Of Indigenous Conflict Management Strategies In Localized Contexts, Brandon D. Lundy, Tyler L. Collette, J. Taylor Downs

Faculty Articles

The professionalization of addressing conflict creates a field filled with specialists highly trained to apply modularized and manualized, often evidence-based solutions. But how effective are these professionalized conflict management strategies in Indigenous and localized cultural contexts compared to homegrown Indigenous approaches? While instances of these Indigenous peacebuilding and conflict management strategies are routine throughout the world, to date, no one has attempted to test which conflict management approaches are most effective empirically, nor has the literature sufficiently addressed the contexts in which strategies are most helpful. Using multi-dimensional scaling and chi-square tests of independence applied to a similarity matrix of …

How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel Richman, Sarah A. Seo

Faculty Articles

This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is crucial …

Puzzles Of Progressive Constitutionalism, Jonathan S. Gould

Faculty Articles

This Review examines the relationship between progressivism and constitutionalism. In doing so, it considers three different ways of thinking about a constitution’s role in a political system. First is constitutionalism as a distinct ideology of governance in which an apex court plays a major role in deciding issues of public policy and articulating national values. Second is the way constitutional culture prompts political actors to argue for their preferred policies in constitutional terms, even when calling for legislative rather than judicial action. Third is constitutional design, the rules of the political game that dictate how lawmaking takes place. Each of …

In Celebration Of Dissents (And Lengthy Textbooks): How Digital Became Different For The Fourth Amendment And Why It Is Time For A Real Warrant Default, Stephen E. Henderson

Faculty Articles

The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a ‘digital is different’ norm. We stand at an inflection point between a monolithic, analog past and a murky future of yet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This Essay first looks back to a monumental, majestic dissent: that of Justice Louis Brandeis in the 1928 decision of Olmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges …