Digital Commons Network^™

Antiracism In Action, Daniel S. Harawa, Brandon Hasbrouck

Faculty Articles

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

Deportation And Dissent: Protecting The Voices Of The Immigrant Rights Movement, Alina Das

Faculty Articles

This article asserts that federal government retaliation against immigrant rights activists poses a severe threat to freedom of speech and the democratic values protected by the First Amendment. Part I describes the recent pattern of retaliation against immigrant rights activists in the United States and its threat to the vibrancy of immigration policy debate. Part II explores how immigrants have been particularly vulnerable to retaliation, by discussing legal precedent and identifying protective mechanisms that have eroded over time. Part III outlines measures that can be taken to protect immigrant voices through robust administrative, legislative, and judicial oversight. Part IV concludes …

Rethinking Swing Voters, Jonathan S. Gould

Faculty Articles

In recent decades, swing voters in courts and legislatures have made many of the United States’ most important decisions of law and policy. It would be easy to conclude from the recent history of the Supreme Court and Congress that democracy or majority rule inevitably entails placing many of a society’s most important decisions in the hands of swing voters. Far from being inevitable, however, swing voters result from a highly contingent set of circumstances, both ideological and institutional. This Article probes these contingencies, describing and evaluating swing voters and the power they hold. It first explains the conditions under …

Monopolizing Whiteness, Erika K. Wilson

Faculty Articles

In racially diverse metropolitan areas throughout the country, school district boundary lines create impermeable borders, separating affluent and predominantly white school districts from low-income, predominantly nonwhite school districts. The existence of predominantly white and affluent school districts in racially diverse metropolitan areas has material consequences and symbolic meaning. Materially, such districts receive greater educational inputs such as higher per-pupil spending, higher teacher quality, and newer facilities than their neighboring more racially diverse districts. Symbolically, owing to the material and status-based value attached to whiteness, the districts are also viewed as elite, which creates a magnetic effect that draws white affluent …

Critical Race Theory Meets Third World Approaches To International Law, E. Tendayl Achlume, Devon W. Carbado

Faculty Articles

By and large, Critical Race Theory (CRT) and Third World Approaches to International Law (TWAIL) exist in separate epistemic universes. This Article argues that the borders between these two fields are unwarranted. Specifically, the Article articulates six parallel ways in which CRT and TWAIL have exposed and challenged the racial dimensions of United States law and international law, respectively. It foregrounds the related ways in which both CRT scholars and TWAIL scholars have: contested the legalization of white supremacy; marked and problematized the degree to which regimes of inclusion can operate as mechanisms of exclusion; staged important if non-identical critiques …

Rethinking Nudge: An Information-Costs Theory Of Default Rules, Oren Bar-Gill, Omri Ben-Shahar

Faculty Articles

Policy makers and scholars--both lawyers and economists--have long pondered the optimal design of default rules. From the classic works on "mimicking" defaults for contracts and corporations to the modern rush to set "sticky" default rules to promote policies as diverse as organ donation, retirement savings, consumer protection, and data privacy, the optimal design of default rules has featured as a central regulatory challenge. The key element driving the design is opt-out costs--howtominimize them, or, alternatively, how to raise them tomake thedefault sticky. Much of the literature has focused on "mechanical" opt-out costs--the effort people incur to select a nondefault alternative. …

The Law Of Legislative Representation, Jonathan S. Gould

Faculty Articles

Law has much to say about the practice of legislative representation. Legal rules from different substantive domains collectively determine the landscape in which legislators act. Most obviously, the law of democracy—the law regulating elections, redistricting, and money in politics—shapes the incentives that legislators face and the sorts of representation that they provide once in office. But so too does the law that governs legislative organization and procedure. Congress and other legislatures are governed by rich bodies of internal rules, many of which receive little attention from either the public or legal scholars. These internal rules can empower or constrain legislators. …

Disaggregating The Police Function, Barry Friedman

Faculty Articles

Policing imposes serious and extensive harms, from shootings and nonlethal uses of force, to stops, searches, arrests, and incarceration. And many of these harms involve pervasive racial disparities. Scholars and advocates tend to see these harms as collateral to policing and seek to address them with “harm-regulating” tools such as civil rights suits, prosecution of police officers, elimination of qualified immunity, more Department of Justice investigations, civilian review boards, and the like. Harm-regulation techniques are unlikely to be successful, however, as we see all too well in practice. Harm is not collateral to policing, it is innate to it. We …

Retelling Copyright: The Contributions Of The Restatement Of Copyright Law, Jeanne C. Fromer, Jessica Silbey

Faculty Articles

The provisions at issue in the draft Restatement of Copyright Law on which ALI membership will vote at ALI’s upcoming annual meeting are central to copyright doctrine and have been the subject of numerous court decisions over the past several decades of technological and industry change: originality, fixation, categories of copyrightable subject matter, the idea-expression distinction, and authorship and ownership. This abundance of legal activity on copyright law demonstrates the value to the profession of this project retelling copyright. In contrast to the dramatic criticism of this Restatement project alleging political capture or illegitimate law reform, the draft’s provisions are …

Sacrificing Secrecy, Daniel S. Harawa

Faculty Articles

Juries have deliberated in secret since medieval times. The historical reason for the secrecy is that it promotes impartiality, which in turn protects a defendant’s right to a fair trial. But as it turns out, jurors are not always impartial. Lurid examples exist of jurors condemning defendants based on the defendant’s race, sexuality, ethnicity, and religion. Generally speaking, courts cannot hear evidence of what transpired during deliberations. In 2017, however, the U.S. Supreme Court created an exception to this rule, holding that the Sixth Amendment requires courts to hear evidence of jurors making racially biased statements. But this exception means …

Black Redemption, Daniel S. Harawa

Faculty Articles

This Essay asserts that if Black lives matter, there needs to be a radical shift in our understanding of punishment. One necessary (but not sufficient) step must be a complete overhaul of current Eighth Amendment jurisprudence to make it reflect the notion that all people, particularly Black people, are redeemable. This requires giving teeth to the “grossly disproportional” standard for deciding whether punishment is excessive — particularly when reviewing harsh sentences imposed under habitual offender laws. It requires dispelling the idea that a child could be considered “permanently incorrigible” and thus worthy of being locked away for life. And it …

The Incoherence Of Prison Law, Justin Driver, Emma Kaufman

Faculty Articles

In recent years, legal scholars have advanced powerful critiques of mass incarceration. Academics have indicted America’s prison system for entrenching racism and exacerbating economic inequality. Scholars have said much less about the law that governs penal institutions. Yet prisons are filled with law, and prison doctrine is in a state of disarray. This Article centers prison law in debates about the failures of American criminal justice. Bringing together disparate lines of doctrine, prison memoirs, and historical sources, we trace prison law’s emergence as a discrete field — a subspeciality of constitutional law and a neglected part of the discipline called …

Race-Ing Roe: Reproductive Justice, Racial Justice, And The Battle For Roe V. Wade, Melissa Murray

Faculty Articles

Amidst a raft of major Supreme Court decisions, a relatively quiet concurrence has planted the seeds for what may precipitate a major transformation in American constitutional law. Writing for himself in Box v. Planned Parenthood, Justice Thomas chided the Court for declining to review a decision invalidating an Indiana law that prohibited abortions undertaken “solely because of the child’s race, sex, diagnosis of Down syndrome, disability, or related characteristics.” Arguing that the challenged law was merely Indiana’s modest attempt to prevent “abortion from becoming a tool of modern-day eugenics,” Justice Thomas proceeded to elaborate a misleading history in which he …

The Legality Of Ranked-Choice Voting, Richard H. Pildes, G. Michael Parsons

Faculty Articles

With the rise of extreme polarization, intense political divisiveness, and gridlocked government, many Americans are turning to reforms of the democratic processes that create incentives for candidates and officeholders to appeal to broader coalitions. A centerpiece of these efforts is ranked-choice voting (RCV). RCV allows voters to rank candidates in order of preference: first, second, third, and so on. To determine the winner, the candidate with the fewest “first choices” is eliminated and those ballots are then counted for the voter’s second-choice candidate. This process continues until a candidate either has a majority of the votes or until only two …

Historical Memory And Transitional Justice, Peggy C. Davis

Faculty Articles

I was honored in September of 2020 to join an august group of speakers convened by Professor Christie Warren, the brilliant and prolific director of William and Mary’s Center for Comparative Legal Studies and Post-Conflict Peacebuilding. Professor Warren had called us together at a time of urgent national soul-searching that was triggered by official and sometimes deadly violence against Black and Brown people and against demonstrators supporting the idea that Black lives matter. We came together to understand transitional justice more fully and to assess its applicability in the United States.

Public Nuisance As Modern Business Tort: A New Unified Framework For Liability For Economic Harms, Catherine M. Sharkey

Faculty Articles

This Article focuses on public nuisance’s innovative use as a means of recovering purely financial losses between non-contracting parties (i.e., “strangers”), in particular where the economic loss rule potentially bars recovery. The Article proposes a new approach to reconciling the torts of negligence and public nuisance, centered on the “channeling” or enforcement rationale: namely, deputizing a class of significantly impacted individuals or entities who can sue to force the tortfeasor to internalize the social costs of its activities. Where the prospect of physical bodily injuries and property damage is attenuated, this cost-internalization function is especially important to deter excessively risky …

Taxing Buybacks, Daniel J. Hemel, Gregg Polsky

Faculty Articles

A recent rise in the volume of corporate share repurchases has prompted calls for changes to the rules governing stock buybacks. These calls for reform are animated by concerns that buybacks enrich corporate executives at the expense of productive investment. This emerging antibuyback movement includes prominent politicians as well as academics and Republicans as well as Democrats. The primary focus of buyback critics has been on securities-law changes to deter repurchases, with only passing mention of potential tax-law solutions. This Article critically examines the policy arguments against buybacks and arrives at a mixed verdict. On the one hand, claims that …

Modern Tort Law: Preventing Harms, Not Recognizing Wrongs, Catherine M. Sharkey

Faculty Articles

Book review of John C. P. Goldberg and Benjamin C. Zipursky, Recognizing Wrongs, Harvard University Press, 2020.

Delegation Of Powers: A Historical And Functional Analysis, Richard A. Epstein

Faculty Articles

It is important here not to get ahead of oneself, for what is often missing in these elaborate historical debates is a sure sense of why anyone—legislators, judges, lawyers, laypersons, and even scholars—should care about the doctrine in the first place. This Article aims to fill the gap with a functional analysis of the nondelegation doctrine that helps explain where it should have teeth and where it should not. Accordingly, Part I offers a brief account of the evolution of the nondelegation doctrine from a historical—mostly originalist in nature—and doctrinal perspective. Part II develops a simple analytical model to explain …

Tort Law And Civil Recourse, Mark A. Geistfeld

Faculty Articles

Book review of Recognizing Wrongs, by John C. P. Goldberg and Benjamin C. Zipursky, Harvard University Press, 2020.

The Federalist Constitution As A Project In International Law, David Golove, Daniel J. Hulsebosch

Faculty Articles

When early Americans talked governance, they used the language of the law of nations. Claiming membership in a world of self-denominated “civilized nations,” the revolutionaries had little choice. The law of nations was the lingua franca of diplomacy. Yet in the eighteenth-century it was much more, also offering resources for envisioning how to govern a nation internally. The law of nations included principles, doctrines, dispute resolution institutions, and compendia of “best practices” circulating through Enlightenment Europe. It was also characterized by a reflective, sociable style of reasoning, in which nations were supposed to make decisions by imagining how other nations …

Culturally And Linguistically Relevant Content Area Instruction For Diverse Students With Learning Disabilities, Shaqwana Freeman-Green, Melissa Driver, Peishi Wang, Jessica Kamuru, Dia Jackson

Faculty Articles

Culturally and linguistically diverse (CLD) students comprise a substantial population of students with learning disabilities, and are historically disproportionately represented in spe- cial education. To effectively teach CLD students with learning disabilities, teachers should integrate evidence-based practices and culturally sustaining pedagogy in their practice. This article highlights several practical examples of culturally sustaining evidence-based practices across the content areas of mathematics, reading, and writing. Suggestions for practice and future research are presented in the article.

The Beginning Of The End: Abolishing Capital Punishment In Virginia, Alexandra L. Klein

Faculty Articles

When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states' modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.

But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, …

Meaningless Guarantees: Comment On Mitchell E. Mccloy's “Blind Justice: Virginia's Jury Sentencing Scheme And Impermissible Burdens On A Defendant's Right To A Jury Trial", Alexandra L. Klein

Faculty Articles

Despite the important role that jurors play in the American criminal justice system, jurors are often deprived of critical information that might help them make sense of the law their oaths require them to follow. Such information with regard to sentencing might include the unavailability of parole, geriatric release, sentencing guidelines, or other information that is relevant to determining a defendant's penalty. Withholding information from juries, particularly in sentencing, risks unjust and inequitable sentences. Keeping jurors in the dark perpetuates injustices and undermines public confidence and trust in the justice system.

Mitch McCloy's excellent Note provides a compelling illustration of …

The Citation Of Unpublished Cases In The Wake Of Covid-19, Michael L. Smith

Faculty Articles

California's Rules of Court prohibit the citation of unpublished state court opinions. Courts and litigants, however, may still cite unpublished federal opinions and rulings and unpublished opinions from other states' courts. This may result in problems, such as limiting courts' and parties' authorities to a skewed sample set, and the covert importation of inapplicable, stricter federal court pleading standards in state court cases. COVID-19 was a stress-test that brought the problems with California's citation rules into focus. The pandemic led to a flood of claims for pandemic-related business interruptions by insured business owners against their insurance companies. While state courts …

Model Rule 8.4(G) And The Profession's Core Values Problem, Michael Ariens

Faculty Articles

Model Rule 8.4(g) declares it misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The American Bar Association (ABA) adopted the rule in 2016, in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA's statement of its mission.

A …

Subordination And Separation Of Powers, Matthew B. Lawrence

Faculty Articles

This Article calls for the incorporation of antisubordination into separation-ofpowers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized …

The Political Reality Of Diversity Jurisdiction, Richard D. Freer

Faculty Articles

Diversity jurisdiction survived concerted frontal assaults made from the mid- to late-twentieth century. It weathered criticism of academics and of some high-profile federal judges. Today, diversity jurisdiction represents a burgeoning percentage of the federal civil docket, and it is supported by an efficiency rationale that did not exist at the founding. Today, academics and judges seem relatively ambivalent toward, and some even accepting of, diversity jurisdiction. Today, we see efforts not to abolish diversity jurisdiction, but to rationalize the various threads of its doctrine.

These efforts should be informed by the lessons that should have been learned by those who …

The City's Second Amendment, David Fagundes, Darrell A.H. Miller

Faculty Articles

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article …

Fiscal Waivers And State "Innovation" In Health Care, Matthew B. Lawrence

Faculty Articles

This Article describes how the Department of Health and Human Services (HHS) has used fiscal waiver authorities—delegated power to alter federal payments to states under Medicaid and the Affordable Care Act (ACA)—to influence state health policy choices. It highlights how the agency uses its fiscal waiver authorities to shape which reforms states choose to pursue, in some cases inspiring genuine state innovation and in others encouraging states to adopt reforms favored by HHS or discouraging states from adopting disfavored reforms. Moreover, while HHS has sometimes influenced state policy making in ways that further the substantive goals of the ACA and …