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States Of Continuity Or State Of Exception? Race, Law And Politics In The Age Of Trump, Devon W. Carbado
States Of Continuity Or State Of Exception? Race, Law And Politics In The Age Of Trump, Devon W. Carbado
Faculty Articles
The article discusses the concept of states of continuity as a state of exception to examine the topics of law, race, and politics in the age of Trumpism. Topics include how U.S. President Donald Trump is advancing a set of constitutional and political frameworks that depart from the normal, the concept of Giorgio Agamben on the state of exception, and the possible worsening of constitutionalized racial inequality under Trumpism.
The "Murder Scene Exception"—Myth Or Reality? Empirically Testing The Influence Of Crime Severity In Federal Search-And-Seizure Cases, Jeffrey A. Segal, Avani Mehta Sood, Benjamin Woodson
The "Murder Scene Exception"—Myth Or Reality? Empirically Testing The Influence Of Crime Severity In Federal Search-And-Seizure Cases, Jeffrey A. Segal, Avani Mehta Sood, Benjamin Woodson
Faculty Articles
Prior experimental studies suggest that judges are susceptible to cognitive biases when making legal decisions, such as being motivated by the legally irrelevant nature of a defendant’s crime when determining the admissibility of challenged evidence. However, that research has been constrained to hypothetical cases, limiting the real-world conclusions that can be drawn from it. Addressing this empirical gap, we offer a novel observational analysis that tests the influence of crime severity on suppression outcomes in actual search-and-seizure cases from U.S. Courts of Appeals. Using legislative criminal penalties to measure crime severity, our analysis shows that as crime severity increases, judges …
Attempted Justice: Misunderstanding And Bias In Psychological Constructions Of Criminal Attempt, Avani Mehta Sood
Attempted Justice: Misunderstanding And Bias In Psychological Constructions Of Criminal Attempt, Avani Mehta Sood
Faculty Articles
How do jurors construe and apply facts and law to decide the point at which a defendant’s thoughts and actions cross the line from being legally innocent to criminal? And under what doctrinal circumstances are such lay constructions of criminality vulnerable to legal misunderstanding and bias? Although these are high-stakes questions, the black box of the jury room leaves the legal system largely in the dark about the answers. Shining an empirical light on this domain, this Article employs tools of psychology to investigate how lay decisionmakers construe and apply legal standards for criminal attempt—a doctrine that imposes liability when …
Property In Radical Markets, Katrina M. Wyman
Property In Radical Markets, Katrina M. Wyman
Faculty Articles
Radical Markets is a bold book, bubbling with ideas, which captures something of the current zeitgeist in arguing that the United States is now burdened by the concentration of economic–and political–power. This essay focuses on the book’s discussion of property rights in land.1 It questions whether Posner and Weyl identify a monopoly problem with private property in land that warrants the attention of contemporary policymakers—and suggests that their discussion of the digital platform monopolies is more intriguing.
Algorithmic Price Discrimination: When Demand Is A Function Of Both Preferences And (Mis)Perceptions, Oren Bar-Gill
Algorithmic Price Discrimination: When Demand Is A Function Of Both Preferences And (Mis)Perceptions, Oren Bar-Gill
Faculty Articles
Sellers are increasingly utilizing big data and sophisticated algorithms to price discriminate among customers. Indeed, we are approaching a world in which each consumer will be charged a personalized price for a personalized product or service. Is this type of price discrimination good or bad? The normative assessment, I argue, depends on the target of the discrimination. Sellers are interested in the consumer’s willingness to pay (WTP) for their goods or services: they maximize profits by charging a price that is as close as possible to the consumer’s WTP. This WTP is a function of consumer preferences on the one …
Footnote 43: Recovering Justice Powell’S Anti-Preference Framing Of Affirmative Action, Devon W. Carbado
Footnote 43: Recovering Justice Powell’S Anti-Preference Framing Of Affirmative Action, Devon W. Carbado
Faculty Articles
For more than four decades, scholars have been debating the constitutional parameters of affirmative action. Central to this debate is Justice Powell’s opinion in Regents of the University of California v. Bakke. For good or bad, that opinion has set not only the doctrinal terms on which lawyers litigate and judges adjudicate the constitutionality of affirmative action, but the normative terms on which many in the public arena discuss the policy as well. However, in all the controversy and contestation over affirmative action, little attention has been paid to footnote forty-three of Justice Powell’s Bakke opinion. There, Justice Powell suggested …
Intersectionality At 30: Mapping The Margins Of Anti-Essentialism, Intersectionality, And Dominance Theory, Devon W. Carbado, Cheryl I. Harris
Intersectionality At 30: Mapping The Margins Of Anti-Essentialism, Intersectionality, And Dominance Theory, Devon W. Carbado, Cheryl I. Harris
Faculty Articles
2019 marks thirty years since the publication of Kimberlé Crenshaw’s groundbreaking article, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics. While scholars across the disciplines have engaged intersectionality from a range of theoretical and normative vantage points, there has been little effort to analyze intersectionality in relation to two other enormously influential theoretical frameworks: Angela Harris’s critique of gender essentialism and Catharine MacKinnon’s dominance theory. This Essay endeavors to fill that gap. Broadly articulated, our project is to map how anti-essentialism, dominance theory, and intersectionality converge and to articulate …
Extraterritorial Jurisdiction, Antitrust, And The Eu Intel Case: Implementation, Qualified Effects, And The Third Kind, Eleanor M. Fox
Extraterritorial Jurisdiction, Antitrust, And The Eu Intel Case: Implementation, Qualified Effects, And The Third Kind, Eleanor M. Fox
Faculty Articles
This Essay in honor of the memory of my dear friend and coauthor, Roger Goebel, presents a cutting-edge issue of extraterritoriality. May the law of one jurisdiction, whose competition law reaches a set of practices that may be anticompetitive, also reach wholly offshore conduct that is part of the same strategy? Does it matter that the conduct is not implemented in the jurisdiction, and its prospective territorial effects are derivative from its effects on the world market? This question was before the Court of Justice of the European Union in the now famous case, Intel Corp. v. Commission (“Intel”). The …
The False Promise Of Presidential Indexation, Daniel J. Hemel, David Kamin
The False Promise Of Presidential Indexation, Daniel J. Hemel, David Kamin
Faculty Articles
The Trump Administration faces mounting pressure from conservative thinkers and activists—including calls from its own National Economic Council director—to promulgate a U.S. Treasury Department regulation that indexes capital gains for inflation. Proponents of such a move—which is sometimes called “presidential indexation”—make three principal arguments in favor of the proposal: (1) that inflation indexing would be an economic boon; (2) that the President and his Treasury Department have legal authority to implement inflation indexing without further congressional authorization; and (3) that in any event, it is unlikely that anyone would have standing to challenge such an action in court. This Article …
Minds, Machines, And The Law: The Case Of Volition In Copyright Law, Mala Chatterjee, Jeanne C. Fromer
Minds, Machines, And The Law: The Case Of Volition In Copyright Law, Mala Chatterjee, Jeanne C. Fromer
Faculty Articles
The increasing prevalence of ever-sophisticated technology permits machines to stand in for or augment humans in a growing number of contexts. The questions of whether, when, and how the so-called actions of machines can and should result in legal liability thus will also become more practically pressing. One important set of questions that the law will inevitably need to confront is whether machines can have mental states, or—at least—something sufficiently like mental states for the purposes of the law. This is because a number of areas of law have explicit or implicit mental state requirements for the incurrence of legal …
Second Generation Property Rights Issues, Katrina M. Wyman
Second Generation Property Rights Issues, Katrina M. Wyman
Faculty Articles
For decades, scholarship, inspired by Ronald Coase and advocating greater use of property rights and markets, has focused on important “first generation” issues related to establishing property rights. This article makes two main points. First, it highlights the potential for things to go awry after property rights have been established in environmental resources. In emphasizing that property rights may become misallocated, this article draws on the theoretical arguments recently advanced by Eric Posner, Glen Weyl, and Lee Fennell that private property can lead to allocative inefficiency. Second, this article highlights three categories of explanations for why environmental property rights are …
What Is Puerto Rico?, Samuel Issacharoff, Alexandra Bursak, Russell Rennie, Alec Webley
What Is Puerto Rico?, Samuel Issacharoff, Alexandra Bursak, Russell Rennie, Alec Webley
Faculty Articles
Puerto Rico is suffering through multiple crises. Two are obvious: a financial crisis triggered by the island’s public debts and the humanitarian crisis brought on by Hurricane Maria. One is not: the island’s ongoing crisis of constitutional identity. Like the hurricane, this crisis came from outside the island. Congress, the U.S. Supreme Court, and the Executive Branch have each moved in the last twenty years to undermine the “inventive statesmanship” that allowed for Puerto Rico’s selfgovernment with minimal interference from a federal government in which the people of Puerto Rico had, and have, no representation. From the point of view …
The New Housing Segregation: The Jim Crow Effects Of Crime-Free Housing Ordinances, Deborah N. Archer
The New Housing Segregation: The Jim Crow Effects Of Crime-Free Housing Ordinances, Deborah N. Archer
Faculty Articles
America is profoundly segregated along racial lines. We attend separate schools, live in separate neighborhoods, attend different churches, and shop at different stores. This rigid racial segregation results in social, economic, and resource inequality, with White communities of opportunity on the one hand and many communities of color without access to quality schools, jobs, transportation, or health care on the other. Many people view this as an unfortunate fact of life, or as a relic of legal systems long since overturned and beyond the reach of current legal process. But this is not true. On the contrary, the law continues …
China-Taiwan Relations Re-Examined: The “1992 Consensus” And Cross-Strait Agreements, Yu-Jie Chen, Jerome A. Cohen
China-Taiwan Relations Re-Examined: The “1992 Consensus” And Cross-Strait Agreements, Yu-Jie Chen, Jerome A. Cohen
Faculty Articles
This Article is a legal-political examination of two of the most consequential elements in contemporary relations between the People’s Republic of China (PRC) and the Republic of China on Taiwan (ROC)—the controversial “1992 Consensus” and the remarkable cross-strait agreements that the ROC and the PRC have concluded, especially the 23 made between 2008 and 2015 when then President Ma Ying-jeou’s Nationalist Party (KMT) governed Taiwan. Political developments have inextricably interlinked these two elements, leading to the present crisis in cross-strait relations that developed when the ROC’s current president, Tsai Ing-wen, led her Democratic Progressive Party (DPP) to electoral victory over …
Regulation In Transition, Bethany A. Davis Noll, Richard L. Revesz
Regulation In Transition, Bethany A. Davis Noll, Richard L. Revesz
Faculty Articles
Presidents have long sought to roll back their predecessors’ regulatory policies. They have typically relied on efforts to repeal regulations and to withdraw unpublished or non-final regulations pursuant to “stop-work” orders directed at agency heads. President Trump is no exception. But rather than stick to the typical playbook, he also made aggressive use of three other instruments: Congressional Review Act disapprovals, requests that courts hold in abeyance pending cases challenging Obama-era regulations, and suspensions of final regulations. Through these strategies, the Trump administration was able to reach a far greater proportion of regulations than would have been possible under prior …
Freedom Of Disposition V. Duty Of Support: What's A Child Worth?, Phyllis C. Taite
Freedom Of Disposition V. Duty Of Support: What's A Child Worth?, Phyllis C. Taite
Faculty Articles
No abstract provided.
Mary And Martha: Putting First Things First In A College Education, Michael A. Scaperlanda
Mary And Martha: Putting First Things First In A College Education, Michael A. Scaperlanda
Faculty Articles
No abstract provided.
Ai Systems As State Actors, Kate Crawford, Jason M. Schultz
Ai Systems As State Actors, Kate Crawford, Jason M. Schultz
Faculty Articles
Many legal scholars have explored how courts can apply legal doctrines, such as procedural due process and equal protection, directly to government actors when those actors deploy artificial intelligence (AI) systems. But very little attention has been given to how courts should hold private vendors of these technologies accountable when the government uses their AI tools in ways that violate the law. This is a concerning gap, given that governments are turning to third-party vendors with increasing frequency to provide the algorithmic architectures for public services, including welfare benefits and criminal risk assessments. As such, when challenged, many state governments …
Limiting The Right To Buy Silence: A Hearer-Centered Approach, Burt Neuborne
Limiting The Right To Buy Silence: A Hearer-Centered Approach, Burt Neuborne
Faculty Articles
Of course, a hearer-driven challenge to both overclassification and private censorship need not be constitutional. We could beef up the Freedom of Information Act to impose enhanced scrutiny on government efforts to shield information from public view. Similarly, judges—both state and federal— could simply stop approving stipulated silencing orders, recordsealing agreements, and settlements containing gag rules. Most importantly, judges could decline to enforce NDAs as unconscionable contracts in derogation of public policy. But the success of any such nonconstitutional reform effort to deal with either or both of the First Amendment loopholes would turn on a recognition of the unacceptable …
Consequential Sex: #Metoo, Masterpiece Cakeshop, And Private Sexual Regulation, Melissa Murray
Consequential Sex: #Metoo, Masterpiece Cakeshop, And Private Sexual Regulation, Melissa Murray
Faculty Articles
The last sixty years have ushered in a tectonic shift in American sexual culture, from the sexual revolution—with its liberal attitudes toward sex and sexuality—to a growing recognition of rape culture and sexual harassment. The responses to these changes in sexual culture have varied. Conservatives, for their part, bemoan the liberalization of sexual mores and the rise of a culture where “anything goes.” And while progressives may cheer the liberalization of attitudes toward sex and sexuality and the growing recognition of sexual harassment and sexual assault, they lament the inadequacy of state efforts to combat sexual violence. Although these responses …
The New White Flight, Erika K. Wilson
The New White Flight, Erika K. Wilson
Faculty Articles
White charter school enclaves—defined as charter schools located in school districts that are thirty percent or less white, but that enroll a student body that is fifty percent or greater white— are emerging across the country. The emergence of white charter school enclaves is the result of a sobering and ugly truth: when given a choice, white parents as a collective tend to choose racially segregated, predominately white schools. Empirical research supports this claim. Empirical research also demonstrates that white parents as a collective will make that choice even when presented with the option of a more racially diverse school …
Democratic Policing Before The Due Process Revolution, Sarah A. Seo
Democratic Policing Before The Due Process Revolution, Sarah A. Seo
Faculty Articles
According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …
From A “Culture Of Unwellness” To Sustainable Advocacy: Organizational Responses To Mental Health Risks In The Human Rights Field, Margaret L. Satterthwaite, Sarah Knuckey, Ria Singh Sawhney, Katie Wightman, Rohini Bagrodia, Adam Brown
From A “Culture Of Unwellness” To Sustainable Advocacy: Organizational Responses To Mental Health Risks In The Human Rights Field, Margaret L. Satterthwaite, Sarah Knuckey, Ria Singh Sawhney, Katie Wightman, Rohini Bagrodia, Adam Brown
Faculty Articles
Human rights advocates are exposed to significant stressors and harms of myriad forms, and suffer elevated levels of post-traumatic stress disorder, depression, and burnout. Yet research into mental health and human rights is nascent. This global study, the first of its kind, and based on interviews with advocates at 70 organizations from 35 countries and dozens of experts, mapped how human rights organizations are responding to the mental health and well-being needs of advocates. The study found that, generally, organizations have responded poorly and much more needs to be done at all levels—individual, organizational, and field-wide. The study addressed: (1) …
Sex And The Schoolhouse, Melissa Murray
Sex And The Schoolhouse, Melissa Murray
Faculty Articles
Book review of The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, by Justin Driver (Pantheon, 2018).
Segregation By Citizenship, Emma Kaufman
Segregation By Citizenship, Emma Kaufman
Faculty Articles
For centuries, prisoners in the United States were housed together regardless of their citizenship status. That changed in 1999 when the federal government began to send noncitizens into separate prisons. Today, tens of thousands of people — more than half of all noncitizens in federal prison — live in an institution segregated by citizenship. The vast majority of these people are Mexican nationals. Nearly all of them are Latino. The rise of the all-foreign prison raises pressing questions about federal immigration power and noncitizens’ equal protection rights. Yet no legal scholarship examines these unusual institutions. Few even know they exist. …
An Intersectional Critique Of Tiers Of Scrutiny: Beyond 'Either/Or' Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
An Intersectional Critique Of Tiers Of Scrutiny: Beyond 'Either/Or' Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
Faculty Articles
For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …
Taking Intellectual Property Into Their Own Hands, Amy M. Adler, Jeanne C. Fromer
Taking Intellectual Property Into Their Own Hands, Amy M. Adler, Jeanne C. Fromer
Faculty Articles
When we think about people seeking relief for infringement of their intellectual property rights under copyright and trademark laws, we typically assume they will operate within an overtly legal scheme. By contrast, creators of works that lie outside the subject matter, or at least outside the heartland, of intellectual property law often remedy copying of their works by asserting extralegal norms within their own tight-knit communities. In recent years, however, there has been a growing third category of relief-seekers: those taking intellectual property into their own hands, seeking relief outside the legal system for copying of works that fall well …
Disaggregating Market Definition: Amex And A Plural View Of Market Definition, Daniel Francis, Jay Ezrielev
Disaggregating Market Definition: Amex And A Plural View Of Market Definition, Daniel Francis, Jay Ezrielev
Faculty Articles
The orthodox view of market definition in antitrust cases is that the same principles of market definition should apply at all stages of an antitrust analysis, and, in particular, that markets should be defined for virtually all purposes by reference to demand-side substitutability. Commentators have struggled to reconcile the Supreme Court’s recent decision in Ohio v. American Express Co.—in which the majority combined services to cardholders and services to merchants into a single antitrust market, despite the evident lack of substitutability between them—with that familiar view. In this short Article, we suggest that this effort at reconciliation may be unnecessary, …
Platforms, Power, And The Antitrust Challenge: A Modest Proposal To Narrow The U.S.-Europe Divide, Eleanor M. Fox
Platforms, Power, And The Antitrust Challenge: A Modest Proposal To Narrow The U.S.-Europe Divide, Eleanor M. Fox
Faculty Articles
Big platforms dominate the new economy landscape. Colloquially known as GAFA or FAANG, the high tech big data companies are charged with using the power of their platforms to squelch start-ups, appropriate rivals’ ideas, and take and commercialize the personal data of their users. Are the platforms violating the antitrust laws? Should they be broken up? Or are they the agents of progress in the new economy? On these points, the United States antitrust law and the European Union competition law may diverge. The Competition Directorate-General of the European Commission has brought proceedings against or is investigating Google, Amazon, Apple, …
Categorical Mistakes: The Flawed Framework Of The Armed Career Criminal Act And Mandatory Minimum Sentencing, Rachel E. Barkow
Categorical Mistakes: The Flawed Framework Of The Armed Career Criminal Act And Mandatory Minimum Sentencing, Rachel E. Barkow
Faculty Articles
The Court’s current approach to the ACCA, the categorical approach, makes the best of a bad situation in a manner that is consistent with the Constitution’s requirements. Interpreting the ACCA as narrowly as possible and robustly enforcing the rule of lenity should be the Court’s other touchstones in this area in light of the harsh consequences the ACCA imposes and the vast discretion it gives prosecutors. But ultimately there is only so much the Court can do. It is up to Congress to fix its mistakes and, until it does, we can expect to see more ACCA cases on the …