Digital Commons Network^™

The Politics Of Deference, Gregory A. Elinson, Jonathan S. Gould

Faculty Articles

Like so much else in our politics, the administrative state is fiercely contested. Conservatives decry its legitimacy and seek to limit its power; liberals defend its necessity and legality. Debates have increasingly centered on the doctrine of Chevron deference, under which courts defer to agencies’ reasonable interpretations of ambiguous statutory language. Given both sides’ increasingly entrenched positions, it is easy to think that conservatives have always warned of the dangers of deference, while liberals have always defended its virtues. Not so. This Article tells the political history of deference for the first time, using previously untapped primary sources including presidential …

Racialized Religious School Segregation, Erika K. Wilson

Faculty Articles

Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education.

Doctrine And Democratic Deconsolidation: On David Driesen’S Specter Of Dictatorship, Noah A. Rosenblum

Faculty Articles

For the last hundred years or so, Americans have been bullish on their presidents. At the turn of the 20th century, Progressive Era thinkers championed the empowered executive as the royal road to ef-ficacious and accountable government. Reformers in Congress agreed, granting the executive sweeping powers. Over subsequent decades, the office of the president accrued ever greater authority. And some are pushing for still more: respected scholars of public ad-ministration champion expanded executive empowerment today on the same good governance grounds mooted over a century ago. But it is getting harder to keep the faith. Scholars of “democratic deconsolidation” have …

Countermajoritarian Criminal Law, Michael L. Smith

Faculty Articles

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people's actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by …

Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland

Faculty Articles

New York Times Co. v. Sullivan is a foundational, well regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution including libel of public figures and public officials.

This Essay connects Justice Thomas's calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle …

Angels, Virgins, Demons, Whores: Moving Towards An Antiracist Praxis By Confronting Modern Investment Law Scholarship, Tara Van Ho

Faculty Articles

Racism is not a natural phenomenon. Historically, it was socialised into global exist existence through intentional acts that have become embedded parts of the international legal order and domestic social systems. Rejecting racism and developing alternative antiracist approaches similarly require intentionality. One area of concern for scholars is how our linguistic and framing choices perpetuate or reproduce racialised hierarchies. In this article, I employ I. Bennett Capers's 'Reading Black' methodology to interrogate racialised narratives embedded in four contributions to modern international investment law debates. The purpose is not to condemn the individual authors but to identify how the socialisation and …

Anti-Discrimination Ethics Rules And The Legal Profession, Michael Ariens

Faculty Articles

“Reputation ought to be the perpetual subject of my Thoughts, and Aim of my Behaviour. How shall I gain a Reputation! How shall I Spread an Opinion of myself as a Lawyer of distinguished Genius, Learning, and Virtue.” So wrote twenty-four-year-old John Adams in his diary in 1759. He had been a licensed lawyer for just three years at that time and had already believed himself to be hounded by “Petty foggers” and “dirty Dablers in the Law”—unlicensed attorneys who, Adams claimed, fomented vexatious litigation for the fees they might earn.

Adams believed his embrace of virtue, along with genius …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

The Third Amendment In 2020, Michael L. Smith

Faculty Articles

Compared with other Amendments in the Bill of Rights, the Third Amendment does not get much attention. Its prohibition on the quartering of soldiers in houses during peacetime, along with its prohibition on similar quartering during times of war absent legal prescription, is rarely the subject of litigation or scholarship. Indeed, most people—and likely most attorneys—probably cannot tell you what the Third Amendment covers if put on the spot. This Article aims to fix this by giving the Third Amendment the respect that one of the Constitution's original amendments deserves. This Article surveys and analyzes caselaw, scholarship, and popular media …

Originalism And The Inseparability Of Decision Procedures From Interpretive Standards, Michael L. Smith

Faculty Articles

In his article, Originalism: Standard and Procedure, Professor Stephen E. Sachs describes a never-ending debate between originalism's advocates and critics. Originalists argue that certain historical facts determine the Constitution's meaning. But determining these facts is difficult, if not impossible for judges, attorneys, and the public. Sachs seeks to rise above this debate, arguing that the legal community should not expect originalism to offer a procedure for interpreting the Constitution. Instead, the legal community should treat originalism as a

standard to judge interpretations.

This Article takes issue with this approach. Originalism is not like other instances in law where statutes or …

A Unifying Doctrine Of Subsurface Property Rights, Joseph Schremmer

Faculty Articles

This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …

The Jury Veto, Stephen E. Henderson

Faculty Articles

While the American civic religion is to be distrustful of government, feelings of discontent regarding our systems of criminal investigation and adjudication feel historic. And while those systems are capable of great carnage en route, the endgame is, ultimately, criminal punishment. Yet before punishment can be imposed, every prosecution—and therefore every defendant—is meant to encounter a potential “circuit breaker”: the jury. I propose that we re-inject this democratic voice into our criminal adjudications, but through an entirely novel structure: the defendant (and perhaps the prosecutor) would have the choice of invoking a jury empowered to ‘veto’ any judicial sentence. By …

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 …

Inequality By Unnatural Selection: The Impact Of Tax Code Bias On The Racial Wealth Gap, Phyllis C. Taite

Faculty Articles

No abstract provided.

Breach By Violence: The Forgotten History Of Sharecropper Litigation In The Post-Slavery South, Brittany Farr

Faculty Articles

This Article uses private law as a lens and a guide to excavate an unfamiliar story about labor and racial violence in the post-slavery south. It is the story of farmers like Colonel Bishop, whose landlord attacked him in the middle of the night in an effort to coerce him into breaching his contract. Violent breaches of contract such as these were not uncommon in the post-slavery south. Indeed, historians have thoroughly documented the violence in this period. Yet much less is known about the doctrinal implications of this violence, particularly in the context of private law. Even less explored …

Weaponizing The Electoral System, Samuel Issacharoff

Faculty Articles

The gravest threat to our democracy does not come from obstacles to voting— indeed, despite state-level efforts at retrenchment, voting remains far easier across the country than in 2008 when the United States first elected a Black president. Rather, the greatest concern is the effort to solidify party control of election mechanisms, turning the ordinary task of tabulating election results into an opportunity for partisan mischief. Under the strains of 2020, despite COVID-19 and its many challenges, the system held up remarkably well. But the stability of these structures depends on a long-haul bipartisan commitment to repeat engagements, a commitment …

Immigration Detention And Dissent: The Role Of The First Amendment On The Road To Abolition, Alina Das

Faculty Articles

The movement to abolish slavery relied heavily on the exercise and protection of enslaved and formerly enslaved people’s freedom of speech against robust efforts to suppress their messaging. The same is true in the context of the movement to abolish immigration detention. For decades, people in immigration detention, formerly detained people, and their allies have exercised their First Amendment rights to expose the conditions of their confinement and demand their freedom. In response to their protests and other forms of individual and collective expression, detained and formerly detained immigrants have faced suppression and retaliation, threatening not only their right to …

Remembering Who Foster Care Is For: Public Accommodation And Other Misconceptions And Missed Opportunities In Fulton V. City Of Philadelphia, Christine Gottlieb

Faculty Articles

The Supreme Court’s opinion in Fulton v. City of Philadelphia, which held that a Catholic foster care agency could refuse to accept gay foster parents, and virtually all commentary on the case, are flawed by a profound misunderstanding of key aspects of the foster care system. The case’s role in the broader culture war between religious rights advocates and those supporting LGBTQ equality has led advocates on both sides to use Fulton for their own purposes at the expense of the families the foster care system is intended to serve. This Article explains that the most important constitutional interests at …

Standing For Democracy: Is Democracy A Procedural Right In Vacuo? A Democratic Perspective On Procedural Violations As A Basis For Article Iii Standing, Helen Hershkoff, Stephen Loffredo

Faculty Articles

Many commentators express concern that democracy in the United States is under threat, whether from the pressure of concentrated wealth and structural racism, government secrecy and authoritarian tendencies, an outdated constitutional structure and old-fashioned corruption, or perhaps a combination of them all. Against this background, this Article argues that the Supreme Court’s treatment of procedural rights for determining standing—the key that opens the door to federal court—is an overlooked factor in contributing to democratic erosion. According to the Court, violation of a congressionally conferred procedural right that does not safeguard some separate, non-procedural, concrete interest of plaintiff—a “procedural right in …

Territoriality In American Criminal Law, Emma Kaufman

Faculty Articles

It is a bedrock principle of American criminal law that the authority to try and punish someone for a crime arises from the crime’s connection to a particular place. Thus, we assume that a person who commits a crime in some location— say, Philadelphia—can be arrested by Philadelphia police for conduct deemed criminal by the Pennsylvania legislature, prosecuted in a Philadelphia court, and punished in a Pennsylvania prison. The idea that criminal law is tied to geography in this way is called the territoriality principle. This idea is so familiar that it usually goes unstated. This Article foregrounds and questions …

Parole, Victim Impact Evidence, And Race, Alexis Karteron

Faculty Articles

This essay proceeds in three parts. Part I describes the parole function, focusing on the purpose and aims of parole. This Part also provides examples of the guidelines and standards, to the extent they exist, that typically underlie the parole decision- making process. Part II lays out research on the relationship between emotion and the law that suggests potential for differential treatment in the parole process on the basis of a victim's race. Lastly, Part III calls for further data collection and research into the role of race in parole decision-making. It further suggests that eliminating victim participation in parole …

Classic Revisited: How Racism Persists In Its Power, Deborah N. Archer

Faculty Articles

Book review of The Fire Next Time, by James Baldwin. New York: Dial Press. 1963 (Vintage International 1993 ed.)

Countering Capture: A Political Theory Of Corporate Criminal Liability, Jennifer H. Arlen

Faculty Articles

In order to effectively deter organizational misconduct, countries must hold companies liable for their organizational misconduct. Some scholars argue, however, that countries should not impose criminal liability on companies and instead should rely entirely on civil liability, which can impose the same sanctions on companies as criminal liability. This claim that corporate civil enforcement is as effective as criminal enforcement is incorrect because it overlooks how the choice between the two affects companies’ ability to use their political influence to undermine corporate enforcement intensity. This Article shows that eliminating federal corporate criminal liability would undermine deterrence because large corporations would …

Are Police The Key To Public Safety?: The Case Of The Unhoused, Barry Friedman

Faculty Articles

We as a nation have to think deeply about what it means for a community to be safe, and what role the police play (or do not play) in achieving that safety. We have conflated, if not entirely confused, two very different things. One is the desire to be safe, and how society can assist with safety, even for the most marginalized or least well-off among us. The other is the role of the police. Contrary to what many seem to think, the police are not a one-size-fits-all provider of public safety. In this paper, I discuss this issue in …

Policing Police Tech: A Soft Law Solution, Barry Friedman, Farhang Heydari, Max Isaacs, Katie Kinsey

Faculty Articles

Policing agencies are undergoing a rapid technological revolution. New products—with almost unfathomable capacities to collect, store, monitor, and transmit data about us— constantly are coming to market. In the hands of policing agencies, some of these products may promise real benefits to society. But too often these public safety benefits are unproven. And many of these products present real harms, including risks to privacy, freedom of speech, racial justice, and much more. Part of “public safety” is being safe from these harms as well. Despite these risks, new policing tech products continue to be adopted and deployed without sufficient (or …

What Is Public Safety?, Barry Friedman

Faculty Articles

For hundreds of years, political leaders and thinkers have deemed public safety the first duty of government. But they have defined public safety rather narrowly, primarily in terms of the “protection” function—protecting individuals from violent harm to person or property from third parties (and also from natural elements). As the first duty, the protection function is privileged. Witness today how we valorize police and other first responders, defer to their decisions without close scrutiny, and immunize them from liability for their mistakes. Yet, is protection really all there is to public safety? For most people, being safe depends on much …

Against Secondary Meaning, Jeanne C. Fromer

Faculty Articles

Trademark law premises protection and scope of marks on secondary meaning, which is established when a mark develops sufficient association to consumers with a business as a source of goods or services in addition to the mark’s linguistic primary meaning. In recent years, scholars have proposed that secondary meaning play an even more central role in trademark law than it already does. Yet enshrining secondary meaning in the law undermines the ultimate goals of trademark law: promoting fair competition and protecting consumers. The dangers of enshrining secondary meaning include the problematic doctrine that has built up to assess it or …

Lemonade: A Racial Justice Reframing Of The Roberts Court’S Criminal Jurisprudence, Daniel S. Harawa

Faculty Articles

The saying goes, when life gives you lemons, make lemonade. When it comes to the Supreme Court’s criminal jurisprudence and its relationship to racial (in)equity, progressive scholars often focus on the tartness of the lemons. In particular, they have studied how the Court often ignores race in its criminal decisions, a move that in turn reifies a racially subordinating criminalization system. However, the Court has recently issued a series of decisions addressing racism in the criminal legal system: Buck v. Davis, Peña-Rodriguez v. Colorado, Timbs v. Indiana, Flowers v. Mississippi, and Ramos v. Louisiana. On their face, the cases teach …

Propertizing Environmental Attributes, Katrina M. Wyman, Adalene Minelli

Faculty Articles

Tangible environmental resources such as land and water have been the object of property rights and traded in markets for millennia. In a development largely unnoticed by legal scholars, technology now allows a new class of environmental resources that are much harder to see and touch to be measured, and potentially sold—environmental attributes. Some of these resources have already been partially packaged into property rights for sale by some governments and private actors, such as actual and avoided carbon emissions, and the environmental benefits of renewable power and electric cars. Other resources, such as avoided water use, remain unpropertized. Trading …

Nysrpa V. Bruen: Weaponizing Race, Daniel S. Harawa

Faculty Articles

While the Supreme Court has weaponized race—particularly America’s history of anti-Black racism—to expand the reach of the Second Amendment, it has not sought to ensure Black people have equal access to the right to bear arms now that the right is broader than ever before. More pointedly, the Court has not seemed keen on revisiting its Fourth Amendment policing doctrines that make public carry for Black people particularly precarious. As this essay explains, itinerant invocations of racial justice are inadequate and potentially harmful. While, as some argued, the total elimination of gun licensing regimes may result in the reduced prosecution …